Minnesota Lawyer Blog

I spent a little time this weekend reading the briefs for a case on the U.S. Supreme Court's docket next month. (I know, I know, it's a gripping way to spend one's off time, isn't it?) Actually it was for a piece I was putting together for Supreme Court Preview, an excellent ABA publication that provides a sneak peek at upcoming high court decisions.

The case I was turning my attention to -- Winter v. Natural Resource Defense Council -- involves an epic battle between the U.S. Navy and err ... dolphins. OK, OK, the parties on the other side of this mammalian struggle are really environmental groups. You may have heard about the case -- which has made quite the media splash. It involves a federal court injunction limiting the Navy's use of sonar during training exercises off the coast of California. The dolphins -- and certain type of whales -- apparently don't appreciate the high pitch blasts of sound. The extent of the injury to their populations is part of the litigation.

It's a serious environmental case that brings up a bevvy of legal issues. For example, when must environmental-protection concerns yield to military preparedness? I can't help recalling those above-ground atomic tests in Nevada back in the 1950s. Those weapons tests obviously wreaked havoc on the environment, but a very good case can be made that they were a necessary part of our national-security strategy. What would have happened if today's environmental laws had existed then? Of course, that would have been the least of the government's potential problems. Officials were allowing spectators in the area to watch the tests with only sunglasses for protection ...

The Winter case also implicates a number of interesting procedural issues that involve the interplay of the three branches of government. It will be interesting to see how the Supreme Court treats the case in a world faced with an increasing number of both national-security and environmental hazards.

Meanwhile, the dolphins (and whales for that matter) have no idea that this is playing out in the highest court in the land of something called the United States of America. Yet, despite their ignorance of our legal system, Douglas Adams, the late author of the very humorous "Hitchhiker's Guide to the Galaxy" series, referred to dolphins as the second most intelligent mammal on the planet-- next to, of course, us. However, even that was the subject of some dispute. The following is one of my favorite quotes from the Hitchhiker series:

"It is an important and popular fact that things are not always what they seem. For instance, on the planet Earth, man had always assumed that he was more intelligent than dolphins because he had achieved so much -- the wheel, New York, wars and so on -- whilst all the dolphins had ever done was muck about in the water having a good time. But conversely, the dolphins had always believed that they were far more intelligent than man -- for precisely the same reasons."

Supreme Court candidate Jill Clark has served an Application to Circuit Justice for Injunction Preventing Unconstitutional Text on Election Ballot for Minnesota Supreme Court Pending Review by Supreme Court of the United States and presumably forwarded the same to U.S. Supreme Court Justice Samuel Alito, the circuit justice for the Eighth U.S. Circuit. She is contesting the denial of such relief by a special five-judge panel appointed by the Minnesota Supreme Court.

Clark has requested Alito to enjoin Minnesota from printing the name of Minnesota Supreme Court Justice Lorie Gildea—whom she refers to as “vacancy-filler”—or from printing incumbent by her name on the Sept. 9 primary ballot. Clark argues that the practice of labeling “incumbent” a judicial candidate who was appointed by the governor and is running for the first time is unconstitutional because it “eviscerates the rights of voters, who should be choosing their judges by election.”

Clark makes some interesting comments in her application, to wit:

1. The Minnesota Supreme Court panel that denied her motion issued its opinion a “mere two hours” after the argument, without “defending itself.” “It appears this could be a ‘lay up’ for this Court to enter [an] injunction pending review, as if the talented Justices on the Panel knew what had to be done, but could not bring themselves to do it.

2. That Clark refused to sign a “missive” from the Minnesota State Bar Association that would waive her federal rights under Republican Party v. White and that the MSBA is “closely aligned” with the state courts, and members of the judiciary sit on its council and “guide its actions.”

3. That the governor illegally appointed “vacancy-filler Gildea” to Associate Justice, after the governor created a vacancy in the seat [by appointing Russell Anderson as chief justice] in order to appoint Gildea and intentionally avoid an election. “The Governor pulled similar tactics to prevent the Chief Justice Seat from going to election. Indeed, a ‘retiring’ Supreme Court Justice ‘bargained’ with the then governor—if she agreed to retire early—would he agree to let her pick her replacement. That retired Justice was quite public about her ‘bargaining power.’(See Ex. 8 to Ex. C). But that little ‘bargain’ intentionally disenfranchised Minnesota voters.”

I’ve called Clark’s office to ask for Ex. 8 to Exh. C. Exhibit C is an affidavit written by Clark accompanying her submission to the Minnesota Supreme Court. Clark is in court and hasn’t responded yet.

Clark argument relies on Republican Party v. White, decided in 2002 before Alito was named to the court. Alito is often said to “follow” Justices Antonin Scalia and Clarence Thomas, who were in the majority on White.

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.

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
detention.

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.

Would a recent U.S. Supreme Court ruling lead to an increase of union-busting in Minnesota?

The decision, Chamber of Commerce of the United States et al. v. Brown et al., says that states may no longer restrict employers’ rights to communicate with their employees about unionization. The court found the state of California had wrongfully denied employers the right to curtail and counteract some union organizing actions.

The Supreme Court rejected California's attempt to encourage unionization through regulatory spending restrictions. The court's decision invalidated key provisions of California AB 1889, enacted in 2000.

The Court determined that the purpose of AB 1889 was to silence employer speech about unions by subjecting them to segregated accounting systems, increased recordkeeping requirements, treble damages, private rights of actions and attorneys fees.

The decision could impact a Minnesota state law which, like the invalidated California statute, restricts state funds from being used by employers.

It's been an odd kind of news day. The chief judge of the 9th U.S. Circuit Court of Appeals is publicly busted for posting sexually explicit material on his personal website, and the U.S. Supreme Court finds that Guantanamo Bay detainees have rights. They say things happen in threes. Can't wait to see what's next in this series ...

The "6o Minutes" interview with Antonin Scalia last night was worth watching. Scalia lived up to his reputation as being intelligent, stubborn and charming. Anyone who follows the U.S. Supreme Court knows that he is the justice who garners the most laughs from the people in the high court's gallery with his witty, though sometimes biting, observations. He is definitely not someone you would want to appear in front of unprepared (although, admittedly, the chances any lawyer would go before a U.S. Supreme Court justice unprepared are fairly minuscule).

Yet, Leslie Stahl's researchers seem to have made a pretty big gaffe on the topic of torture. Stahl asked Scalia how he could believe that torture did not constitute "cruel and unusual punishment" under the U.S. Constitution. Scalia tried to explain that torture is not used for punishment, but to extract information, and, because it is not "punishment," that particular provision does not apply. (The debate on torture centers on human rights treaties, not the 8th Amendment.) However, Stahl kept pressing Scalia on this one point, as if it was the justice who didn't get it. After Scalia made several stabs at clarifying the constitutional point, it became obvious Stahl wasn't hearing him. He promptly ended the discussion and moved on.

That one part aside, I thought it was a decent interview. I don't know if I liked it enough to go buy the recently released book Scalia co-authored with legal writing guru Bryan A. Garner, "Making Your Case: The Art of Persuading Judges." It would certainly be worth picking up if you are going to argue before the U.S. Supreme Court. Personally, I would have been more interested in reading Scalia's autobiography. I mean if Clarence Thomas, who never says a word on the bench, can write one, why can't Scalia?

This just in from the Minneapolis law firm of Lindquist & Vennum:

The U.S. Supreme Court has agreed to hear a case challenging the extent of tribal court jurisdiction over non-tribal members. Paul A. Banker and Robert V. Atmore of Lindquist & Vennum PLLP, who petitioned the high court on behalf of their client, Plains Commerce Bank of South Dakota, argue that the Cheyenne River Sioux Tribal Court lacked subject-matter jurisdiction to adjudicate civil claims between tribal members and Plains Commerce Bank, which is not affiliated with the tribe.

The bank is seeking reversal of the 8th U.S. Circuit Court of Appeals’ decision in Plains Commerce Bank v. Long Family Land & Cattle Company Inc, which held that the tribal court had jurisdiction over the bank.

Minneapolis attorney Mary Vasaly recently returned from a trip to Washington, D.C., where she had a chance to hear from U.S. Supreme Court Justice Samuel Alito on appellate advocacy. At today’s Minnesota CLE Appellate Practice Institute, she passed along two nuggets of advice Alito shared.

The first was that amicus briefs shouldn’t repeat the arguments of the litigants, but should present the case in a new light. That makes sense.

The other comment was interesting. According to Vasaly, Alito said he frequently only reads the summary-of-the-arguments in briefs. (Supreme Court briefs can be up to 15,000 words long.) Thus, it's important to pack as much information into that section as possible – but concisely.

I’m not sure how I feel about the justices not reading the entire briefs.

Local attorney Kathleen Flynn Peterson garnered a mention on DC Dicta, the national blog of our sister publication, Lawyer USA. Peterson, as president of the American Association for Justice, provides a response to the U.S. Supreme Court's recent Stoneridge decision. (See "U.S. Supreme Court turns back 10(b) action" on this blog.)

The Lawyers USA blog (Dicta) has an interesting piece today previewing the oral arguments on an interesting death-penalty case that the U.S. Supreme Court was scheduled to hear today.

The case calls into question Kentucky's use of lethal injection, with defense lawyers claiming it constitutes cruel and unusual punishment. The defense lawyers are making the argument that because the drugs used paralyze the person being being executed, he or she cannot indicate whether he or she is suffering excessive pain. Click here for more.

“There’s not much that entices about the job. There’s no money in it, no privacy, no big houses, and from an ego standpoint, it does nothing for me.”

-- Justice Clarence Thomas on serving on the U.S. Supreme Court (from the WSJ Law Blog)

The U. S. Supreme Court yesterday heard oral arguments in a closely watched employment law case. The high court has been asked to decide whether a plaintiff suing for employment discrimination can introduce so called "me too" evidence. (Click here for more.) DC Dicta -- a blog run by our national sister publication, Lawyers USA -- actually found something funny to report on in a pretty serious case.

With the new attorney general and the solicitor general looking on, Deputy Solicitor General Gregory Garre argued the government's amicus position. Garre is a seasoned attorney who once clerked for Chief Justice William Rehnquist, but that did not stop him from inadvertently misstating the name of one of the justices.

In another otherwise articulate response to question from Justice Samuel Alito, Garre mistakenly referred to Alito as "Justice Scalia." (Alito and Scalia sit three seats apart.) There are, of course, liberal blogs that might say we are splitting hairs differentiating between the two conservative justices. Nonetheless, the slip up -- which went otherwise uncommented on --reportedly drew chuckles from the press gallery.

I am just glad to know that even the most seasoned lawyers get nervous when they argue a case in front of the U.S. Supreme Court.

The Associated Press reports that the U.S. Supreme Court today declined to hear a challenge to a California county's practice of routinely searching welfare applicants' homes without warrants.

One of the interesting moments of Justice Clarence Thomas' interview on "6o Minutes" last night (see post below for more on the interview) came when the justice talked about the difficulty he had finding a job after receiving his J.D. in 1974. Despite having gone to an ivy-league law school (Yale), Thomas could not find a Big Firm willing to hire him.

In debt and jobless, the future justice came to view his law degree as not being worth 15 cents. In fact, to this day he keeps the degree in storage with a 15-cent price tag on the frame. (It bears mentioning that Thomas came to be of the view that affirmative action programs had diluted the value of his degree in the eyes of Big Firm employers.) Thomas did, of course , eventually land a job, but it wasn't a position at a Big Firm. Instead, Thomas was hired as an assistant attorney general in Missouri at $10,000 a year.

Thomas' experience raises several issues. One we have blogged about here before -- the problems more and more law students are facing in servicing their ever-growing debt loads when, for whatever reason, they don't wind up in a lucrative job at a Big Firm. (See "Are lawyers job prospects dimming?") It's a very important issue facing the profession and one that will be explored more fully in a future edition of Minnesota Lawyer.

Much has been said of the silence of U.S. Supreme Court Justice Clarence Thomas on the bench. Last term he did not utter a word during oral arguments (see "Ever-taciturn Thomas is in a quiet spell.") So I was eager to see what the quiet justice would say when given the chance on an exclusive interview on CBS' "60 Minutes."

I actually thought the supremely silent justice did very well. He came across as intelligent and well-spoken. One can certainly disagree with Thomas' personal, political and legal views, but there is apparently much more to the man than the caricature that has been generally presented. Given the eloquence he showed in the interview, it's a shame that Thomas does not speak up more often. Silence is not always golden.

I have spent the last 2.5 days at Minnesota CLE's Criminal Law Institute, picking up a bevvy of CLE credits and seeing what's new in the criminal law area. From this morning's lecture on the U.S. Supreme Court, here are just a few interesting tidbits:

-- The high court decided 68 cases this term -- the lowest output since 1953;
-- Justice Anthony Kennedy was the swing vote in every one of the more than 20 opinions decided by a 5-4 margin;
-- some lawyers have, as a result, begun tailoring their Supreme Court arguments specifically to court Justice Kennedy;
-- the high court has shown a strong proclivity toward taking business cases (40 percent of the docket) and toward deciding in favor of the business in most of those cases; and
-- a woman who mailed poisoned home-baked cookies to all the justices in 2005 was sentenced to 15 years in prison last year.

The last point gave me some pause as I munched absent-mindedly on one of those free bagels they set out for you at CLE programs ...

We at Minnesota Lawyer try not to be prima donnas when we participate in panel discussions or other events in the legal community. However, that apparently cannot be said of every legal journalist.

Gale Beckerman over at the Columbia Journalism Review has an amusing piece today about New York Times Courts reporter Linda Greenhouse, whom Beckerman dubs the "queen bee of Supreme Court reporters." Greenhouse was to be one of several legal journalists on a panel discussing covering the high court. C-SPAN came to film the event, which was sponsored by the Association for Education in Journalism and Mass Communication.

But things got a little odd when Greenhouse arrived, according to Beckerman. When Greenhouse saw C-SPAN's lights and cameras, she reportedly "became infuriated."

According to Beckerman, Greenhouse told the organizer that she had come to speak to a “room of academics,” and “didn’t want to have to modulate [her] comments for a national audience." She then reportedly issued an ultimatum -- the cameras go or she does. (Greenhouse denies this, saying that she would have continued even if the camera crew had not left.)

In any event, since Greenhouse was a marquee participant in the panel, the organizer chose to placate her, and the poor C-SPAN camera crew was sent packing -- probably to cover some legislative subcommittee meeting somewhere.

I would encourage you to read Beckerman's full post. (See "The Greenhouse Effect.") It's an entertaining piece poking fun at the ego of a legal journalist. My personal assistant and I had a good laugh about it before I sent her off to fetch me another chilled bottle of Perrier.

I hope everyone had a happy and safe Memorial Day Weekend! In case you missed it on your way to the lake on Friday, I am providing a link to an interesting article that was on the Bloomberg wire. So wipe off that barbeque sauce, and check this out:

Roberts Court Deals Lawyers Setbacks in Suits Against Companies
By Greg Stohr

May 25 (Bloomberg) -- For trial lawyers, any news from the U.S. Supreme Court these days is probably bad.

The court this week threw out an antitrust lawsuit against the nation's three largest telephone companies, saying judges should be quicker to dismiss cases that would force corporations and other defendants to mount a costly defense. The decision was part of a trend that attorneys say is making it harder to successfully press class-action cases and other suits against businesses.

Trial lawyers may suffer additional setbacks in the next month as the court, under Chief Justice John Roberts, rules on two investor lawsuits that justices criticized during arguments in March.

For more, click here.

On the plus side, no anti-trial lawyer decisions came out over the long weekend ...