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Thursday, July 3, 2008

All's quiet on the judicial-elections front

I just checked the judicial-elections portion of the Secretary of State's website and so far today it looks like there's not much new to report. It's likely to be a slow day for filings on the eve of the 4th of July holiday, with everyone apparently thinking about barbecues and time on the lake rather than judicial races. In fact, many have trickled out of their offices already, except for, of course, us poor ink-stained wretches and you, our loyal blog reader.

I had hoped to bring you news of the races for the Minnesota Supreme Court. As I mentioned in a prior post, challengers have filed against both justices up for election. Information is easily available on Justice Lorie Gildea's opponent, Rick Gallo, who has worked in the Appellate Division of the Minnesota State Public Defender's Office for more than two decades. However, I was able to unearth very little in my preliminary search for information on Justice Paul Anderson's challenger, Alan Lawrence Nelson.

In order to bring some further illumination on his candidacy, I contacted Mr. Nelson yesterday at the phone number provided on his filing. It went right to voice-mail. This morning, I received the following response via e-mail: "I can appreciate your desire for timely information, but I am deferring all questions until my website is fully active on July 16th. The website will have a full resume/CV and biography section."

He also invited me to shoot him an e-mail with any further questions after that date. In the meantime, here's a link to his website, which currently contains only a sentence stating that it will become active on July 16, which, incidentally, is the day after the filing period ends at the Secretary of State's Office.

We will provide more information on this and other races when we have it. In the meantime, enjoy some well-deserved time off. We will not be posting tomorrow, so enjoy that hot dog or burger, and of course ...

Wednesday, July 2, 2008

Contingency cases: easy come, easy go

Just as Faegre & Benson absorbed a bitter blow last week when the U.S. Supreme Court reduced its original damages award in Exxon v. Baker by 90 percent, a pair of Twin Cities law firms could stand to benefit greatly from a case decided in Dakota County this week.

In Braun v. Wal-Mart, District Court Judge Robert King, Jr. found that Wal-Mart violated Minnesota’s Fair Labor Standards Act on more than 2 million occasions. More than seven years ago, Maslon Edelman Borman & Brand, along with Schwebel Goetz & Sieben, took the case, which resulted in a class of about 65,000 current and former hourly workers at Wal-Mart’s Minnesota stores seeking compensation for off-the-clock work, and for missed mandatory meal and rest breaks.

King already has awarded more than $6.5 million in damages to about 56,000 current and former Minnesota Wal-Mart employees, but that could be just a beginning. He has ordered a second phase of the trial to begin in October, when a jury will determine punitive damages and the amount of statutory penalties to be imposed against Wal-Mart. Minnesota’s wage and hour laws allow for a penalty of up to $1,000 for each violation, meaning that if the jury awards the full penalty for each, the award could be in excess of $2 billion.

Maslon wouldn’t confirm that it took the Wal-Mart case on contingency, though unofficial sources say they did. Regardless, the fact remains that when firms of their size take on such cases, it can mean stretching resources and risking a lot. In those cases, decisions like this one can be extra gratifying.

Tuesday, July 1, 2008

Both state high court justices up for election now face challenges

It's official -- both Minnesota Supreme Court justices up for election in the '08 election cycle will face challengers.

F. Richard Gallo, an assistant state public defender who has worked in the office's appellate division for 23 years, has filed to run against Minnesota Supreme Court Justice Lorie Gildea.

Meanwhile, Minnesota Supreme Court Justice Paul Anderson will face a challenge from attorney Alan Lawrence Nelson, who also filed today. The state's attorney-registration website lists Nelson as having been admitted to the practice of law in Minnesota in 1992. It also says he doesn't currently carry malpractice insurance and doesn't represent private clients. It also lists an address in Maplewood. At present, that's all the info I have on that challenger.

This just in...another judicial candidate

Hennepin County District Court Referee David L. Piper has announced his candidacy for the seat on the bench expected to be vacated by Judge Thomas Wexler. Piper has served as a family court referee since 2001 and previously served as a child support magistrate. Prior to that he was in private practice and served as a family court public defender. His campaign manager is Jeff Stoebner.

The race is on

Today is the first day that candidates can file for office and it won't pass uneventfully. Both state Supreme Court justices up for election, Lorie Gildea and Paul Anderson, told Minnesota Lawyer they plan to file today. (Click here to see the filings for judicial seats so far.)

In other judicial-election news, Senior Assistant Hennepin County Attorney Elizabeth Cutter has announced that she will file for the seat anticipated to be vacated by Judge Thomas Wexler in Hennepin County. Cutter serves as a supervisor in the violent crimes division and has worked in Hennepin County for 20 years. Her steering committee is led by Minneapolis attorneys Tom Tinkham and Jean Holloway.

A race is also shaping up in Ramsey County for the seat to be vacated by Judge John Finley Howard Orenstein, Andy Dawkins and Gail Chang Bohr are the definite candidates, with several others maybes potentially throwing their hat in the ring as well. Orenstein recently announced that he has the endorsement of Rep. Betty McCollum of the Fourth Congressional District.

Monday, June 30, 2008

The buck stops here

The $1 apparently knocked off the Capital One Bank settlement to allow then-Attorney General Mike Hatch to direct the proceeds speaks volumes.

For anyone who missed it, the AG's Office settled a lawsuit against the well-known credit card issuer in 2006 for an oddly precise $749,999. Had the case settled for a dollar more, the money would have gone into the general fund for the Legislature to distribute. Because it fell a hair's breadth beneath the $750,000 threshold, Hatch was able to direct the distribution of two-third of the proceeds to two nonprofits -- $250,000 to the Legal Aid Society (a good cause, but also a politically popular one) and $249,999 to the community action group ACORN (which reportedly later endorsed Hatch in his gubernatorial bid). The other third of the settlement went to the state to cover the costs of investigation.

As with most of the various controversies that have cropped up around the AG's Office over the last 15 months or so, I am not sure there is anything illegal here, but something stinks to high heaven. It reminds me of those individuals you'd sometimes hear about who would withdraw just a little bit less than $10,000 out of banks to avoid the transaction being reported to the IRS. Eventually, the federal government had to outlaw conduct engaged in to skirt the federal reporting requirement,

There is a certain amount of hubris in making the settlement $749,999 -- an amount that can have almost no logical basis but to avoid the $750,000 threshold -- instead of some other amount, such as $700,000, which could at least arguably have some basis in the case. Alternatively, a part of me now can't help wondering whether Capital One would have paid more -- such as $800,000 -- but the higher amount was not sought because that money could not have been distributed in a way politically advantageous to the AG.

Ordinarily, a buck chiseled off a settlement for political reasons would not cause me to lose much sleep. However, in this case, it's yet another indignity in a long string of them. Just once I would just like to see someone in a leadership role in the AG's Office stand up and take responsibility for any of the numerous issues that have cropped up. If you admit a problem is there, at least you can start to deal with it. However, I fear that such an acceptance of accountability will never come -- or, if it ever does, it will likely be a day late, and a dollar short.

Auditor reports on AG's Office to Audit Commission

Minnesota Lawyer just posted an article on today's Legislative Audit Commission meeting, which included a discussion of the June 3 report by Legislative Auditor James Nobles on the Office of Attorney General Lori Swanson.

Certainly the contents of the report -- made public a month ago -- were not a surprise. However, there were a couple of interesting new twists picked up by the reporter, Charley Shaw, who writes for one of our sister publications, the Capitol Report (a/k/a the St. Paul Legal Ledger).

As you recall in the written report, Nobles concluded that the types of allegations made by those who came forward for the investigation -- including charges of mismanagement and misconduct -- were not in purview of the Office of the Legislative Auditor, which typically investigates the uses of state funds. Nobles did call on lawmakers to consider whether attorneys who work at the AG's Office should remain "at-will" or be afforded some kind of civil-service job protections.

However, under questioning from Rep. Steve Simon, DFL-St. Louis Park, Nobles acknowledged that some of the allegations not discussed in the written report involved the use of funds. Nobles said that his office will will follow up on financial allegations involving the use of Medicaid funds in the course of its next regularly scheduled review of federal compliance.

Click here for the full Minnesota Lawyer article.

An interesting side note, we recently reported here that ACORN, a community action group, gave the Minnesota AG's Office an "A+" on its efforts to combat mortgage fraud (one of only six AG's Offices nationally to be so recognized). ACORN, as it turns out, was one of two nonprofits that got to split two-thirds of the $749,999 settlement the Minnesota AG's Office scored from Capital One. (The other third went to the state.) The AG's Office (then under Hatch) got to direct the settlement (rather than having it go into the general legislative coffers) because the settlement amount came to less than $750,000. (By just a $1! What a coincidence!) In any case, now I'm a little miffed Minnesota only got an "A+" ...

It's also worth noting that the settlement occurred under Hatch's watch, not Swanson's (although Swanson was, of course, a top deputy).

Judicial selection in Minnesota -- Some revolutionary thinking

My editor's column this week, apropos to the upcoming July 4 holiday, features a fictional discussion with the Founding Fathers about proposals to reform Minnesota judicial-selection system. Click here to read the full column.

UPDATE: 06/30/08 at 2:48 p.m:
And for those of you who just can't get enough on judicial selection, Luke Kuhl, a Hamline Law grad and partisan research consultant for the Minnesota House of Representatives, provides the following link to an article he wrote that was published last March.

Sunday, June 29, 2008

Audit committee to discuss auditor's report on AG's office Monday

The Legislative Audit Commission will meet 1:00 p.m. Monday, June 30, in room 107 of the State Capitol, to discuss, among other things, the Office of the Legislative Auditor's preliminary assessment of allegations concerning the office of Minnesota Attorney General Lori Swanson. (For hearing notice, see OLA website.)

In a report issued earlier this month, the OLA found it did not have jurisdiction over the types of complaints raised against Swanson by some of her staff members. However, in light of the concerns, the OLA called on lawmakers to review whether it's necessary that all the attorneys in the AG's Office remain at-will employees serving at the pleasure of the AG. (The employees at some state agencies have been afforded civil-service protections.)

The purpose of tomorrow's meeting is to hear from the Legislative Auditor James Nobles, his staff and the state officials directly affected by the Legislative Auditor’s reports. Testimony from others will not be taken at this meeting.