Minnesota Lawyer Blog

I spent this morning over at Civic Fest, which bills itself as a very Minnesota celebration (whatever that means). For those of you who have not been following it, Civic Fest is a family-friendly "multimedia experience" focusing on local and national history, including the American presidency. Among the traveling exhibits are a miniature recreation of the White House, historical documents (including the Declaration of Independence), a display of first lady gowns, a mock Oval Office and a very impressive collection of historical memorabilia. The exhibits, which are at the Minneapolis Convention Center, have been timed to coincide with the Republican National Convention. It's a great way to share in the convention excitement, catch up on your history and have some fun. There's definitely a lot there of interest to lawyers, plus lots of entertaining stuff for kids and other family members. I'd encourage everybody to attend.

I was there in the capacity of a volunteer, having responded to Mayor R.T. Rybak's call for local citizens to pitch in. Most of the time I spent directing folks onto the Air Force One exhibit and stationed at a prototype of Ronald Reagan's presidential limo. My favorite comment came from a precocious little girl who stuck her head by the open door of the frequently mothballed limo, took a deep whiff and exclaimed, "It smells like my grampy."

In any event, here are two pictures I took during off periods on my iPhone. The first (at left) is of the message informing members of the public that one of the electronic speakers at the presidents' exhibit was experiencing technical difficulties. (Poor Dick Nixon still can't catch a break.) I like the fact that whoever wrote the "pardon" message apparently had a sense humor. (If you can't see the writing, click on the photo to make it bigger.)

The second photo (at right) is of a Lincoln impersonator who circulated around the exhibit hall. Someone said to me that this faux Lincoln was in fact a little taller than the real McCoy, but the hat used was a bit shorter, so it all evened out. I have no idea if this is actually true, but I like the symmetry if it is. In any event, I could not hear what Lincoln was saying to this woman standing in line at the miniature White House. Perhaps he dropped by to tell her to make sure she checks out the Lincoln bedroom. (File that one under great presidential pickup lines.)

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.

It appears that Goodhue County District Court Judge Tim Blakely is in hot water with the Minnesota Board on Judicial Standards.

According to news reports, Blakely faces discipline for getting a huge discount on his divorce bill after sending business to his lawyer. The board’s complaint says the judge got a $63,503 markdown on his bill after he began appointing his attorney, Christine Stroemer, as the mediator in cases he oversaw as a judge. The board contends that Blakely’s actions violated the judicial canons requiring judges to preserve the integrity and independence of the judiciary as well as avoid the appearance of impropriety.

Blakely denies any wrongdoing and points out that Hennepin County Attorney Mike Freeman's office reviewed the board’s contentions and declined to prosecute him.

The Minnesota Supreme Court will ultimately determine whether there is cause for discipline, but it seems to me at least that whether or not the judge actually meant do anything wrong, his actions just don’t pass the smell test.

Minneapolis-based Target agreed to pay $6 million to settle a class action suit in California with the National Federation of the Blind, The Associated Press reports.

The settlement, announced Wednesday, requires Target to make its website more accessible to the blind by Feb. 28, 2009. The company will also work with the federation over the next three years to test screen-reading software.

A five-member panel heard oral arguments this morning regarding the petition filed by Jill Clark, who is running for office against Supreme Court Justice Lorie Gildea.

Clark argued that it was unfair, and possibly even unconstitutional, to have Gildea listed on the ballot as an incumbent, and asked that either Gildea be removed from the Sept. 9 primary election ballot, or have her status as incumbent removed.

She also argued that since Minnesota first passed a statute putting candidates’ incumbent status on election ballots in 1949, only two Supreme Court Justices have been elected without being appointed first by a governor -- Donald Peterson in 1965, and Alan Page in 1992. That pattern indicated an unfair advantage for incumbent candidates, she said.

Arguing on behalf of the respondents, who included Gov. Tim Pawlenty and Secretary of State Mark Ritchie, Rice County Attorney Paul Beaumaster said it would not only be impractical and prohibitively expensive for all 87 Minnesota counties to change their ballots two weeks before the primary, but that the counties wouldn’t have the discretion to do so without the go-ahead from the Secretary of State’s office -- which would in turn need to be ordered to do so by the court.

More information on today’s hearing will be in Monday’s issue of Minnesota Lawyer.

The Court of Appeals today ruled that a jointly-owned vehicle should not be forfeited based on the illegal conduct of one of its owners when the other owner proves by clear and convincing evidence that he or she did not know the vehicle would be used illegally.

In Laase v. 2007 Chevrolet Tahoe, a case of first impression, the wife pled guilty to second-degree DWI-refusal to test, and had a prior conviction. The husband persuaded the trial court that he did not have actual or constructive knowledge that the vehicle would be used illegally. This innocent-owner offense is set forth in Minn. Stat. sec. 169A.63, subd. 7(d) but has never been applied in a joint owner situation. The appellate court did not elaborate on the nature of the husband’s proof and said that the statute should be liberally construed.

Judge James C. Harten wrote the opinion, in which Judge Matthew E. Johnson concurred. Judge Kevin G. Ross dissented.

It took a few tries, but the court has assembled a panel to hear arguments in a petition filed by Jill Clark, who is running for office against Justice Lorie Gildea.

Clark wants to remove Gildea’s name from the ballot or at least remove the incumbent designation. The court has naturally recused itself and last week a panel of former justices was named: Acting Chief Justice James Gilbert and Justices Sam Hanson, Edward C. Stringer, Esther M. Tomljanovich and Lawrence Yetka.

But then Hanson, Stringer and Tomljanovich rescused, since they were listed as supporters on Gildea’s Web site. Oops. Named to replace them were Court of Appeals Judges Bruce Willis and Roger Klaphake and Hennepin County District Court Judge Marilyn Rosenbaum.

Double oops. The judge’s wife, Carol Klaphake, is also listed on the Web site. Replacing Judge Klaphake is Judge Gordon Shumaker. No Shumakers on the list.

Argument is scheduled for Tuesday morning.

Centro Legal turns 27 this year, and is inviting members of the business and legal community to help it celebrate.

On the way to work this morning, we spotted a lawn sign advertising a candidate for the Minnesota Supreme Court. Glancing at the sign as we drove by, the first and last name on it looked familiar, but they were separated by what appeared to be a jumble of consonants.

It was only later that we realized the sign was advertising sitting justice Lorie Gildea -- that is, Lorie Skjerven Gildea. We're so used to referring to her by her married name only that we momentarily forgot her admirable Scandinavian roots.

We know Justice Gildea would never stoop to this, but it reminded us of the mini-flap a few years ago when, during her campaign for State Auditor, the candidate heretofore known as Pat Awada suddenly became Pat Anderson Awada. As political pandering goes, it's pretty mild stuff. But that's how we do things in de Gopher Staten.