Minnesota Lawyer Blog

Those of you who are following news of judicial elections in other states may be interested to know that the U.S. Supreme Court last Friday accepted certiorari in the case of Caperton v. A.T. Massey Coal Company, which I discussed here. The plaintiffs, who argue that campaign donations to the justices created the appearance of impropriety amounting to a due process violation, are represented by former Solicitor General Theodore Olson. According to the New York Times, Olson said in his pleadings, “The issue raised by massive campaign contributions to judges from litigants and their attorneys go to the very heart of what it means to be given a fair trial.” The defendants argued that “looks bad” is not a test of due process.

Minnesota Lawyer is currently soliciting nominations for its annual "Attorneys of the Year" award. If you know of someone who had a really good year (or did a lot of good this year, for that matter), let us know about it. Click here for more information about the award and to submit a nomination online. You can also e-mail information (to mark.cohen@minnlawyer.com) or send it to us by regular mail at:

c/o Editorial Department
730 2nd Ave. South, Suite 100
Minneapolis, MN 55402

Nominations are due by Dec. 11.

I attended a CLE yesterday where a Hennepin County judicial law clerk discussed the fact that more and more parties are choosing to represent themselves in court proceedings.

I’m sure that at least part of the reason for the increasing numbers of pro se litigants is the economy. Many people simply can’t afford to hire an attorney, which is particularly distressing if they are facing the loss of basic needs like shelter, safety, health care and child custody.

While everyone has the “right” to represent themselves, we in the legal community know that it can be a problem -- for the judges who handle the matters and for the lawyers on the other side who struggle with how much, if any, assistance to provide the pro se party. It’s also a problem for the pro se litigants themselves in that they may not get a fair shake due to their unfamiliarity with court procedures and the law that applies to their case.

To address the growing problem of pro se and unrepresented litigants, the American Bar Association Section of Litigation is holding a two-day symposium on the topic early next month. The seminar will address what the lawyers can do to help overcome the barriers of access to justice, and how the legal community can provide a right to legal counsel in order to assure that people are treated fairly in adversarial proceedings, especially given financial tightening by government.

“Real People, Real Needs, Real Solutions: Access to Legal Representation in Civil Litigation” will be held in Atlanta on Dec. 4-5. For more information on the symposium, click here.

Here's an interesting piece of news we received in a press release from the Hennepin County District Court today:

Judge Marilyn Kaman, Hennepin County District Court, is one of 15 finalists for the 7-member United Nations Appeals Tribunal (UNAT), part of a new system for the administration of internal justice at the United Nations.

The UNAT will be charged with hearing appeals of decisions on employment disputes from the UN system worldwide. The UN’s Internal Justice Council received 237 applications from professional judges in 55 countries.

Applicants were required to have at least 15 years judicial experience, were of high moral character, serve with full judicial independence, and were subject to a rigorous screening process involving both written and oral examination.

Chief Justice EricMagnuson remarked, "The Minnesota Judicial Branch is proud of the international recognition afforded to our judges, and of the willingness of those judges to serve above and beyond the call. Judge Kaman is an excellent example of both sources of pride."

The historic recount in the U.S. Senate race between Al Franken and Norm Coleman is under way in St. Paul, and officials at the 100 recount sites are taking the process seriously: In Stearns County, the opening of a sealed box of ballots was shown live on the St. Cloud Times’ web site.

Meanwhile at our sister publication, Politics in Minnesota, it’s reported that Franken’s legal team too issue with former state attorney general Ken Raschke’s opinion on whether Minnesota law allows the review of rejected absentee ballots. Raschke’s thoughts were solicited by Secretary of State Mark Ritchie.

Among other things, Rashcke points out that Minnesota Stat. 204C.35 says that “only the ballots cast in the election and the summary statements certified by the election judges may be considered in the recount process.”

Attorneys for Franken’s campaign countered that Raschke’s opinion “incorrectly leaves the distinct impression that the recount cannot include the review of and the counting any absentee ballot wrongly rejected during the election judges’ initial counting of the ballots.”

Yesterday the National Association of Women Lawyers released the results of its third national Survey on Retention and Promotion of Women in Law Firms and the news isn’t good.

The 2008 survey shows that women continue to be markedly under-represented in the upper levels of law firms. The majority of women who start as associates in firms do not reach the position of equity partners; law firm leaders, including governing committees and managing partners, are overwhelmingly male.

Highlights of the survey findings include the following facts:

For more than two decades women have graduated from law schools and started careers in private practice at about the same rate as men, yet women continue to be markedly under-represented in the leadership ranks of firms, accounting for fewer than 16% of equity partners.

Only about 6% of law firms report that they have a woman in the highest leadership position of managing partner. The highest governing committee in large firms typically counts only one or two women members although governing committees average 11 to 12 members.

The percentage of women lawyers of color is greatest in the associate category (11%) as compared to women of color who are non-equity partners (3%) or equity partners (1.4%).
The market for lateral partners impacts promotion to equity partner. Laterals account for roughly two-thirds of the women and three-quarters of the men who were newly promoted to an equity position. A startling 31% of new equity partners were recent laterals, suggesting that they were specifically recruited or negotiated for an equity position. The data belie the traditional notion that largely homegrown attorneys are promoted to equity partner.

The survey has captured data on a newly identified category of law firm: the “mixed-tier” firm. In the mixed-tier firm, all “equity” partners are required to contribute capital to the firm but some of them are paid as if they were income partners. About 15% of the nation’s largest firms are mixed-tier firms and preliminary data indicate that women have a somewhat lower chance of advancing to equity partner in mixed-tier firms.

There is evidence that more recent women graduates are being promoted to equity partner at a somewhat greater rate. These numbers show, however, that even in the best of circumstances, women are promoted to equity partner at only about half the rate as men.

At every stage of practice, men out-earn women lawyers, a finding that is consistent with NAWL’S previous surveys and data from other sources. Male equity partners earn on average over $87,000 a year more than female equity partners.

Nearly 97% of large firms have implemented women’s initiatives, which provide a combination of programs on professional development, networking, mentoring and/or business development. Given that women’s initiatives and formal programs for business development skills are relatively new activities in firms, it is too early to say whether these various programs will enhance the level of business development among women lawyers.

For the full NAWL survey visit: http://www.nawl.org/Assets/Documents/2008+Survey.pdf. In addition, NAWL's July 2008 report from its National Leadership Summit, Actions for Advancing Women Into Law Firm Leadership: http://www.nawl.org/Assets/Summit+Report+2008.pdf, provides a list of recommended actions for law firms committed to advancing women into leadership positions.

I have a modest proposal for resolving whether Norm Coleman or Al Franken should represent our fair state in the U.S. Senate for the next six years -- a coin toss.

Let me explain.

First of all, all of this back and forth about the relevance of the DFL ties of Secretary of State Mark Ritchie to his role in the recount misses the point. Even if Ritchie were they type of old-style politician to try to bend the entire process to his party's will -- and I don't think he is -- the other four members of the Canvassing Board serve as a sufficient check to prevent that. I cannot imagine Supreme Court Chief Justice Eric Magnuson, Supreme Court Justice G. Barry Anderson and Ramsey District Court Judges Kathleen Gearin and Ed Cleary would stand idly by and allow such a subversion of the process to happen. The two high court justices are both Republican appointees who have done well rising above politics in their judicial roles; Cleary used to head the office charged with overseeing the ethics of all the state's lawyers. If those are supposed to be the co-conspirators that Ritchie hand selected to lead a DFL coup of the democratic process, he ought to be upbraided for his incompetent team-selection skills rather than for his Machiavellian maneuvers. In reality, I think the secretary of state is committed to running a clean process. While there is certainly some subjectivity in declaring which debatable votes should count and which ones shouldn't -- and it's impossible to predict at this point how those calls will affect the final result -- I am reasonably confident at this point that those decisions won't be made on a partisan basis.

An army of lawyers and lay observers will be watching the actual ballot recounts, mitigating the chances for any serious hanky panky at that level.

That leaves human error. Even if the hand recount of the 2.8 million ballots is 99.9 percent accurate, that means that 2,800 votes will be inaccurately tallied. When the candidates are only separated by a paltry 200 votes or so, the odds that we will send the right man to the Senate (i.e. the candidate who would be declared the winner in a completely error-free count) are only marginally better than the result that would be generated by random chance. Which gets me to my point. A coin toss would be a lot cheaper, swifter and more certain than any recount could ever be. So let's do it: Heads Coleman, tails Franken ...

This proposal is, of course, being made tongue in cheek. A recount is required by law in this situation -- and is needed to determine whether there were any glitches or irregularities in the election process that would demonstrate that there is a more statistically significant margin of votes separating Coleman and Franken. In any case, people will be presumably be more willing to accept the result of the recount because -- even if it isn't -- it at least has the appearance of not being as random as the coin toss. Whatever the recount result, we are likely to be stuck with a bevy of related litigation for some time to come.

Of course, even if we were to adopt the coin toss as our method of resolving elections this close, I am not sure we could keep the lawyers out of it. There would likely be lawsuits over who gets to do the toss, who gets heads and who gets tails and which coin to use (e.g. A penny? Sorry, Lincoln was a Republican. A dime? Sorry, FDR was a Democrat).

Perhaps we should make that a game of "rock, paper scissors" instead ...

Delivering the keynote address at Dorsey & Whitney 's 19th annual corporate counsel symposium earlier today, author and legendary journalist Bob Woodward cracked a couple of jokes and shared his thoughts on President George W. Bush and the war in Iraq. The following clip is an excerpt of Woodward's speech, delivered at the Hyatt Regency in downtown Minneapolis.



For the YouTube version, click here.

Today Dorsey & Whitney's is having its annual Corporate Counsel Symposium, which is a good way to keep up on some of the major corporate law issues. Dorsey also traditionally has some prominent keynote speakers at the event's luncheon. Two years ago it was former Secretary of State Madeleine Albright; last year it was former Treasury Secretary Robert Rubin; this year it's legendary journalist Bob Woodward.

We at Minnesota Lawyer thought we might take some video of Woodward's speech so that we could put a clip on this blog for those of you who wanted to get a taste. Being the polite folks we are, we ran it by the Dorsey folks to make sure that was OK.

No problem, we were told, so long as we would only be using brief excerpts. It seems that the journalist instrumental in breaking Watergate restricts the amount of taping that can be done when he speaks. Fortunately, this idea never occurred to President Nixon ...

Congratulations are due to St. Paul attorney Hugh Markley, who was honored last weekend by the Ramsey County Bar Association for more than three decades of pro bono work on behalf of Southern Minnesota Regional Legal Services.

Markley received the Ramsey County Bar Association's 2008 Pro Bono Award at the recent Bench & Bar Benefit in Roseville. Taking time out from his general practice, Markley has devoted thousands of hours to taking on family law and child custody cases for low-income clients throughout Ramsey County.

Markley spent time as a foster child, something that has given him a keen appreication of the needs of at-risk kids and families. The current and coming tough economic times mean more and more lawyers like Markley will be needed -- here's hoping he's an inspiration to young and old lawyers alike to give a little bit back.

A sharp-eyed reader noting our headline that said that this year’s appellate races offered few surprises wrote to remind me about Supreme Court races in other states. In a Mississippi race that shows where John Grisham gets his ideas, three justices running for second, eight-year terms lost: Chief Justice Jim Smith lost to Jim Kitchens, Justice Oliver Diaz Jr. lost to Randy “Bubba” Pierce, and Justice Chuck Easley lost to David Chandler. A fourth, Justice Ann Lamar, who was appointed last year by Gov. Haley Barbour, won her race. Diaz was indicted in 2003 in what he calls a political prosecution in connection with a loan to defray campaign debts, and acquitted. He claimed to have been targeted for defeat by the U.S. Chamber of Commerce. Oddly, the Mississippi Business and Industry Political Education Committee gave Smith a 72 % rating while giving Easley and Diaz 27 and 28 % respectively.The Smith-Kitchens race reportedly cost over $1 million.

In Michigan, Chief Justice Clifford Taylor was defeated by Judge Anne Hathaway, a nominee of the Democratic Party. Reports are Taylor raised over $1.7 million but Hathaway had Bruce Springsteen at a “Vote for Change” concert in which she said her opponent's judicial philosophy is "a death trap, a suicide rap..." An October television ad claimed that Taylor fell asleep during oral argument, which he denied.

In West Virginia, former Chief Justice Elliot Maynard didn’t survive a primary after pictures of him vacationing in Monte Carlo with a business executive who had a pending case came to light. The case, Caperton v. A. T. Massey Coal Company, is awaiting a possible grant of certiorari from the U.S. Supreme Court over whether another West Virginia Supreme Court justice must step aside in the case. The Caperton plaintiffs won a $50 million fraud verdict against Massey but the West Virginia court has twice set aside the verdict by a 3-2 majority. According to the New York Times, Justice Brent D. Benjamin, both times a member of the Caperton majority, won his seat with the help of more than $3 million from the same Massey executive who took the former chief justice to Monte Carlo but has refused to recuse himself from cases involving Massey. The Times says the Caperton case turns largely on whether millions of dollars in campaign support from an interested party creates an appearance of impropriety so strong that recusal is required. Two other cases involving West Virginia are pending at the Supreme Court, both of which involve the state’s odd law that denies companies a right to appeal punitive damage awards.)

Some of these justices may have been turned out of office deservedly, but our reader reminds us, brace yourselves, Minnesotans, for 2010 when a majority of the Minnesota Supreme Court will be on the ballot.

As has been reported elsewhere, the recount of the Senate race between Norm Coleman and Al Franken is only the second recount of statewide election results in Minnesota since the 1962 gubernatorial race. The other recount was, of course, just a couple of months ago -- and that came in a judicial election.

As loyal readers of this blog will no doubt recall, Supreme Court Justice Lorie Skjerven Gildea faced three challengers in the primary -- public defender Richard Gallo, Minneapolis attorney Jill Clark and Hennepin County District Court Judge Deborah Hedlund. In judicial races, which are nonpartisan, the top two vote-getters earn a place on the November ballot. Gildea finished on top with about 54 percent of the vote; Gallo was the bottom vote-getter with about 11 percent. That left Clark and Hedlund to vie for the second spot on the general election ballot. Statistically, they were both fairly evenly split, with both getting between 17 and 18 percent of the vote. Hedlund had an edge in the unofficial tally -- 1,369 votes of more than 316,000 cast in the race. Because state law requires a recount if an election is decided by less than a .5 percent margin, an automatic recount was triggered. Clark narrowed the margin by just seven votes in the recount, not nearly enough to displace Hedlund as the number two vote-getter. Hedlund went on to the general election, where she lost her challenge against Gildea.

The Coleman/ Franken recount -- which hasn’t even started yet -- has already proved to be a lot less smooth. Last Wednesday morning -- the day after the election -- the unofficial tally had Coleman ahead by 725 votes out of more than 2.8 million cast. However, as counties double check and verify their reporting, Coleman’s lead has shrunk to just 204 votes.

The Coleman/ Franken recount will be much more controversial than the judicial race recount for many reasons, including:

• The margin is much closer -- 204 votes in a race where each candidate has about 1.21 million votes vs. 1,369 votes in a race where the candidates each had between 55,000 and 57,000 votes.
• Primary races tend to be not as closely watched as general election races, since the “winners” only go onto the November ballot rather than into public office.
• Judicial races garner much less attention than presidential, congressional or even state legislative races. We have chronicled on this blog the many ways that this fact is unfortunate, but that doesn't stop it from being true.
• Senate races, unlike judicial races, are partisan. This makes a difference for many reasons. For example, in a nonpartisan race, you don’t have to worry as much that a voting issue in a GOP or DFL stronghold will affect the candidates disproportionately; you also don’t have to worry about politics affecting vote counters’ decisions about which votes to count (and not count).

I could go on, but I think you get the general gist. No matter what happens with this recount (and I have every confidence that Secretary of State Mark Ritchie will do all he can to make it as clean as possible), the race will provide the political blogosphere conspiracy-theory fodder for many years to come.

Conspiracy theories aside, our imperfect system of paper ballots and scanning technology with recounts by hand is just not set up well for elections this close. Even an error of just one vote tabulating every 10,000 recounted will yield a difference of 240 votes when counters are sifting through 2.4 million ballots. Are you confident you could work your way through 10,000 ballots without making a single mistake? I sometimes have difficulty double checking my change when I purchase something. Yet I don’t think many of us at this point want to shift our elections completely over to computers. All it would take would be one really good hacker or one really bad virus to make Joe the Plumber the president of the United States. No thanks!

I think for the time being we are stuck with our imperfect system. To paraphrase Winston Churchill, it’s the worst system in existence, except for all the other systems.

The Minnesota Court of Appeals celebrated its 25th anniversary yesterday.

The Minnesota Lawyer website has posted its judicial election wrap up story. Click here to see it.

All-in-all the election went pretty smoothly. Unlike the primary, there were no recounts necessary -- which is probably for the best given that the Secretary of State's Office is pretty busy with that whole Coleman/Franken recount thing. It's an coincidence that there was no statewide recount necessary in Minnesota for 46 years -- and then within a couple of months of each other we get two, one in a judicial race, one is a Senate race.

Meanwhile, Minneapolis attorney (and former U.S. attorney) Tom Heffelfinger, who was to represent Coleman in the recount, has withdrawn.

"I am committed to a thorough, expeditious, and non-partisan review of the interaction between law enforcement and the community during the RNC. I have realized that taking a leadership role with Senator Coleman’s recount team would interfere with my commitment to the City and the RNC inquiry. Therefore I have informed the Coleman campaign I will not be available for the recount effort," Heffelfinger said in a press release issued today.

We at Minnesota Lawyer were interested in how members of the general public decide whom to cast their ballot for in judicial elections, so we sent intrepid associate editor Barbara Jones -- along with our one-man video crew -- on the road to find out. They stopped off at a polling place in downtown Minneapolis to talk with some voters. As you will find out from this video, judicial election choices can be like sausages, those who love them may not want to see how they are made ...

The judicial election results were no surprise at the appellate level, with the incumbents winning handily in the two contested state Supreme Court races and one contested Court of Appeals races.

Minnesota Supreme Court Justice Paul Anderson skated by his challenger, 9th Judicial District magistrate Tim Tingelstad, by more than a 60/40 margin. A similar margin of victory was enjoyed by Court of Appeals Judge Terri Stoneburner, who turned back a challenge from International Falls attorney Dan Griffith, who was twice before unsuccessfully sought judicial office. (Tingelstad has also made two prior bids for judgeships.)

In the most closely watched appellate race, Supreme Court Justice Lorie Skjerven Gildea beat Hennepin County District Court Judge Deborah Hedlund by a 55/45 margin.

In the 2nd Judicial District (Ramsey County), Children's Law Center executive director Gail Chang Bohr pulled off what at least one political insider described as a "shocker" against former state lawmaker Howard Orenstein to fill a vacant judicial seat. Many had assumed Orenstein's name recognition in Ramsey County and knowledge of political campaigns would make him tough to beat. It bears pointing out that Bohr did narrowly miss beating Orienstein in a State Bar poll, and was endorsed by the Pioneer Press, so maybe it was not that much of a surprise. Nonetheless, it was quite an impressive feat for a political (errr... judicial) newcomer.

In the 4th judicial District (Hennepin County), former state lawmaker Jane Ranum prevailed over Hennepin County District Court referee David Piper in the most closely watched race. Ramum and Piper were competing for an open seat. Piper pumped $100,000 of his own money into his campaign war chest, but in the end lost by about 9 percent of the vote to the better-known ex-lawmaker.

In all the other District Court races, the incumbent prevailed. This includes another closely watched race in the 4th Judicial District, where Judge James Swenson turned back a challenge from Thomas Haeg, a former magistrate with the court.

Click here to see the complete breakdown from the Secretary of State's website.

I spent yesterday (and I mean the whole day -- 5:30 a.m. to 9:00 p.m.) working as a Ramsey County election judge, and it was an eye-opening experience.

The precinct where I worked wasn’t even one of the busiest in town, attracting about 1,100 voters during the 13 hours the polls were open. But there was a long line to start the day, and voters came in steady streams throughout.

The evidence that Minnesota saw near-record voter turnout was confirmed by the hundreds of first-time and newly-registered voters, and the willingness of people to go the extra mile to make sure others got a chance to cast a ballot. On a regular basis, registered voters from the neighborhood -- including folks from the precinct’s halfway houses and homeless shelters -- returned to the polls with friends, roommates and neighbors who wanted to vote, too. (Under Minnesota law, a registered voter can “vouch” for the residency of anyone who lives in the same precinct, even if that person doesn’t have a permanent address.)

Even though no TVs or radios were allowed inside the polling place, the stream of new and young voters gave me a strong hunch about how the presidential race would turn out. That hunch was confirmed when, after closing, the precinct’s chief election judge ran the final tally and found that almost 900 voters (more than 80 percent) of voters in this mostly white, overwhelmingly working-class precinct voted for Barack Obama.

The enthusiasm of the voters even carried over into the judicial elections. Many voters who were advised to examine both sides of the ballot were glad to discover they would have a say in who their judges would be, and a few even brought notes into the voting booth based on research they had done on the judicial candidates.

I haven’t been this excited to vote since the first time I cast a ballot, and considering that was for Abraham Lincoln, that’s saying something. It was really fun this morning to be part of the crowd and watch our process. It was a beautiful golden morning and actually a pleasure to stand in line. I got to the polling place about 7:20 and I was about the 250th voter when I got in around 8:00. I live in a precinct near a university so my demographics are skewed, but the vast majority of the group was under 30. That was very cool. A number of people brought their children with them, which I haven’t noticed before, and which was also very cool. However, I thought the woman with three very active little girls who asked the election judges if they had any toys for them was a little odd. Did she think she wasn’t going to have to stand in line? Ditto for the woman with the (non-service) dog. I’m kind of nervous around dogs, even when they are leashed, and I didn’t think the canine needed a civics lesson. But that’s just me. On the other hand, the dog wasn’t questioning anybody’s patriotism.