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Friday, July 11, 2008

A Court of Appeals seat is contested

We now have a contested judicial race for a seat on the Court of Appeals. Dan Griffith, who has run for a judicial seat unsuccessfully on two prior occasions, has filed a challenge against incumbent Judge Terri Stoneburner.

Griffith, an International Falls attorney, previously ran against (now retired) Court of Appeals Judge R.A. "Jim" Randall in 2004 and Court of Appeals Judge Christopher Dietzen in 2006.

Stoneburner was appointed to the Court of Appeals by Gov. Jesse Ventura in 2000, and elected after a contested race in 2002. She previously practiced law in Mankato.

In other election news, Hennepin County District Court Philip D. Bush now faces a challenge from Eugene Link of New Hope.

Judicial candidates have until end of the business day Tuesday to file with the Minnesota Secretary of State's Office.

UPDATE: Looks like the "Eugene Link" challenging Judge Bush is Alan Eugene Link, who lists a home address the same as the one in the filing. The attorney-registration database lists Alan Eugene Link at Regis Corp., admitted to the Minnesota bar in 1996.

Prosecutor's restricted license status didn't warrant new trial

Remember Gemma Graham? She’s the Hennepin County prosecutor who got into hot water last year when it was discovered that she had not reported CLE credits for 20 years.

It was bound to happen -- a defendant challenged his conviction on the grounds that he was prosecuted by an assistant county attorney whose license to practice law was on restricted status. Earlier this week, the Court of Appeals issued a decision in the case, ultimately ruling that the defendant was not entitled to a new trial.

The facts in State v. Ali were grisly, involving a man who’d been found guilty of first-degree assault after biting off the tip of someone’s finger. The Court of Appeals based its decision not to allow a new trial primarily on the grounds that the defendant failed to show he was prejudiced by Graham’s restricted license status.

The court discussed the competing considerations of the integrity of the criminal justice system and the reluctance to set aside a conviction when guilt was fairly established. Clearly wanting to avoid imposition of a per se rule, the court stressed the need to take a “flexible” approach in this situation. Also relevant to its decision was the practical effect of an alternate ruling -- that every defendant Graham prosecuted in 20 years would be entitled to a reversal of his conviction.

I agree that is a frightening thought. But still, this is a difficult issue that raises some legitimate questions. Wasn’t Graham technically practicing law without a valid law license? And don’t we take that offense seriously in Minnesota? How does the public feel about the fact that a prosecutor can violate the profession’s own rules and there are few, if any, consequences?

I can’t help but wonder how this decision will be viewed by the general public and the legal profession.

Thursday, July 10, 2008

Justice Paul Anderson now faces two challengers

Tim Tingelstad, a magistrate in the 9th Judicial District, has filed to run against Minnesota Supreme Court Justice Paul Anderson in the upcoming judicial election. Tinglestad is the second challenger in the race. As we reported earlier, Maplewood attorney Alan Lawrence Nelson has also declared himself a candidate for Anderson's seat.

In cases such as this where there are more than two people running for the same seat, the field will be whittled down to two in a September primary, with only the top two vote getters proceeding to the general election in November.

High court broadens pro bono CLE credit eligibility

The Minnesota Supreme Court recently amended a new CLE rule allowing credits for pro bono work. The changes were made in response to criticism that original version of the rule was not inclusive enough.

The CLE rule -- which took effect on July 1 -- allows attorneys to accrue one CLE credit for every six hours of legal representation provided to a pro bono client. Attorneys can accrue a maximum of six such credits per three-year reporting-period under the rule.

As originally worded, the rule sparked some controversy because of its narrow definition of what constituted a Legal Services provider. Only work done for a Legal Services provider was eligible for credit. The rule defined a Legal Services provider as “a legal services organization funded by the Legal Services Corporation.” Several local nonprofits that provide pro bono services -- including the Volunteer Lawyers Network -- were excluded by this language.

The new version (issued the day before the pro bono CLE rule was to take effect) is much broader in its definition of pro bono work eligible for credit. In addition to work for groups funded by the LSC, it includes pro bono efforts overseen by nonprofits that have a primary purpose of providing legal services to the poor, law firms that offer similar programs with a designated supervisor and the Minnesota Judicial Branch for designated projects, such as the Guardian ad Litem Program.

In-house is in vogue

My sources at Special Counsel, formerly The Esquire Group have been telling me for months that attorneys are flocking to in-house jobs. Turns out, they're on to something.

According to the recently released 2008 Chief Legal Officer survey from Altman Weil, 49 percent of respondents plan to hire more lawyers in the next year. This is up from 40 percent in 2007.

Another 26 percent plan to decrease their use of outside counsel, which is a notable jump from the 16 percent in last year's survey.

The full report, which surveyed 126 chief legal officers between May and June, is available here.

Wednesday, July 9, 2008

Counties will have to stretch resources to take CHIPS, TPR cases

In the face of the shortfall in funds for the state’s public defense system, at least one Minnesota county has already taken the step of digging into its own pockets to cover the shortfall.

Yellow Medicine County commissioners said yesterday that the county will be paying the legal costs when court-appointed attorneys are needed in cases involving children protection or the termination of parental rights.

Yesterday was the day when public defenders were due to stop taking those cases. The public defender’s office for the Eighth Judicial District will no longer accept appointments to represent parents in these cases, District Judge Bruce Christopherson told the Yellow Medicine County board. The public defender’s office will also terminate its representation in current cases that have been admitted to trial.

The county will be charged the district’s going rate of $75 an hour for the legal help. County Attorney Keith Helgeson said that thanks to efforts by social services, the county is seeing a reduction in the number of situations requiring court intervention, according to Helgeson.

Hats off to Yellow Medicine county (which lost 1.5 fulltime-equivalent public defenders, or about 10 percent of the department’s workforce) for stretching other resources to help parents involved in CHIPS and TPR proceedings, but the unpredictable nature of demand for public defense means that it and other counties might have to dig even deeper in the future.

Tuesday, July 8, 2008

Walgreens was made to part with too much green for property taxes

Two locally based firms -- James H. Gilbert Law Group and Robert Hill & Associates (both of Eden Prairie) -- scored a big victory for Walgreens today at the Wisconsin Supreme Court.

The dispute involved how the tax value of two properties leased by Walgreens for use as stores should be calculated. Under the arrangement it has used to develop thousands of sites nationwide, Walgreens leases sites from developers that buy the property and develop it to fit the retailer's highly specialized needs. The long-term leases Walgreens enters into provide for rents at substantially above market rates in order to allow the developer to recoup its capital outlay and other development costs over time. As part of the lease, Walgreens agrees to pay all property taxes.

In determining what those property taxes should be on the two properties, the city of Madison used the rent generated by the property as a means of figuring out the property's market value. However, rather than using the rent amount that the property would generate on the open market to determine the properties' worth, the city used the much higher monthly rent that Walgreen paid to the developer. The city's way of calculating property value led to a result that was much higher than Walgreens' -- approximately doubling the valuations from about $2 million each to about $4 million each.

Both the trial court and lower appellate court ruled in favor of the city's assessment.

But, in Walgreen Co. v. City of Madison, the Wisconsin Supreme Court today reversed.

"If we were to expand the law in the direction the City requests, property assessments would in essence become business value assessments, with assessors improperly equating financial arrangements with property value," wrote Judge Louis Butler for the court.

Jim Gilbert of the Gilbert Law Group called the decision "huge," given that Walgreens has thousands of stores and uses a similar lease arrangement with developers throughout the country. He noted that this decision was "closely watched" as cash-strapped municipalities look to find creative ways to fill their coffers as residential real estate values decline.

Gilbert's co-counsel on the case was Bob Hill.

Monday, July 7, 2008

Greetings from Pudunk to Justice Scalia

Speaking of the U.S. Supreme Court, I happened to catch a repeat of an interview with Justice Antonin Scalia discussing some of his thoughts while plugging his new book. At one point he was talking about the quality of the lawyers who come before the high court. He said there was generally a higher quality to the bar of the D.C. U.S. Circuit Court of Appeals (where he sat before joining the high court) because of the specialized nature of that bar. At the U.S. Supreme Court, on the other hand, you get trial lawyers and others not used to arguing appeals, many making their first (and most likley only) Supreme Court appearance.

While some are just awful, others are surprisingly good, Scalia said. As an example of the former, the justice cited a lawyer from a big, white-shoe Wall Street firm who spends his time bumbling through his notes. As an example of the latter, he said that a young public defender "from Podunk" will occasionally come before the court and make a brilliant and flawless argument. Scalia says what goes through his mind in the second instance is that her talents could be better utilized. (I am not so sure the Podunk poor would agree. ...). Explaining further, he expressed a belief that the legal system siphons off too much of the talent, and that their skills could be better utilized doing things like inventing things and building companies. A fascinating comment, particularly since he answered that he could not have envisioned using his own talents in any other way than as a lawyer or judge.

A noteworthy aside: Scalia strongly emphasized that lawyers appearing before the U.S. Supreme Court should wear a conservative dark suit -- dark blue, gray or black. "Not brown," not even "dark brown," he said with finality. I couldn't help getting a chuckle out of this knowing that Scalia owes his place on the high court to President Ronald Reagan, a man whose personal style statement was the reintroduction of the brown suit to the White House.

Local lawyers criticize 'Boumediene' ruling

Two local lawyers -- Larry Purdy and Ryan Check -- take issue with the recent U.S. Supreme Court ruling on the rights of Guantanamo Bay detainees in an opinion piece published in this week's Minnesota Lawyer. ("‘Boumediene v. Bush’: Judicial arrogance writ large?")

Here's an excerpt from the commentary to give you a flavor of it:

Loosely translated from the original Latin, a writ of habeas corpus directs
the government to “deliver the body” of a person wrongfully detained. With a
historical framework stretching back centuries to the English Magna Carta, the
writ’s grand purpose under our Constitution is to limit the government’s power
over its citizens by protecting Americans from illegal arrest or indeterminate

Now, however, as a result of the U.S. Supreme Court’s recent 5-4 decision
in Boumediene v. Bush, this great principle — which undoubtedly has helped
secure the blessings of liberty for “We the People” — has inexplicably been
extended to foreign enemy combatants captured and detained outside the United
States at the U.S. naval station at Guantanamo Bay, Cuba. By opening the doors
of our federal courthouses to our foreign enemies, the court has, in essence,
converted the vicious war being waged against America and her allies — to date
resulting in the deaths of thousands of Americans, both civilian and military —
into something more akin to a global police action; and in the process, has
opted to offer the same habeas corpus rights afforded to Americans under our
Constitution to foreign terrorists bent on our destruction. (Click
here for more

It's been an interesting term for the high court -- particularly in the last few weeks. The court managed to get conservatives angry with Boumediene, liberals angry with (well, take your pick, but for now we'll say ...) its gun-ban ruling in District of Columbia v. Heller and even the usually buttoned-down Faegre & Benson (and not to mention some Alaskan fishermen) hot under the collar with its punitive-damages ruling in Exxon Shipping Co. v. Baker.