Minnesota Lawyer Blog

Like many regular visitors to the Minnesota Judicial Center in St. Paul, I enter the building through its southeast side, from Martin Luther King Jr. Boulevard. And as regular visitors to the building no doubt know, the doors to that entrance weigh approximately 10,000 lbs. each. I don’t know what kind of triple-reinforced armor they’re made out of, but they make the entrance to the average bank vault seem like a cottage screen door.

Usually I can muster the strength to open the doors if I remember to plant my feet and square my back, just as I was taught in the weight training unit of a long-ago gym class. But on a recent visit to the Judicial Center, in my haste I forgot to do those things as I exited, and not only did I walk square into the unyielding door, but my attempt to lightly push it open resulted in a gashed finger, thanks to a metal edge on the door frame. I briefly considered a personal injury action against the building’s management, but a quick mental survey of the legal minds within it made me reconsider.

I used to silently mock the able-bodied people who would insist on pushing the automatic door-opening button when entering the Judicial Center, but no more. Sometimes the path of least resistance really is the best way to go.

As expected, the two incumbent Supreme Court justices up for election -- Paul Anderson and Lorie Gildea -- easily sailed through the primary. Anderson, who got about 64 percent of the vote, will square off against the number two vote-getter, 9th District referee Tim Tingelstad, in the November election. Tinglestad got about 22 percent of the vote. The third candidate in that race, software engineer/ attorney Alan Lawrence Nelson, got about 14 percent of the vote.

Meanwhile, the race between two of the challengers who want to face Gildea in November is a real squeaker. Hennepin County District Court Judge Deborah Hedlund currently leads Minneapolis attorney Jill Clark by a razor-thin margin of about half a percent. (Both candidates have between 17 percent and 18 percent of the vote. At the time of this post, the counting for 95 percent of counties was reported as complete.) The fourth candidate in the race, Richard Gallo, finished with a little more than 11 percent of the vote.

In Hennepin County, family court referee David Piper (26 percent) and prosecutor/ former state Senator Jane Ranum (22.3 percent) emerged victorious in a field of six attorneys running for an open seat, earning themselves spots on the November ballot. (Prosecutor Liz Cutter made a valiant effort, missing out by only about 1 percent). In Ramsey County, prosecutor/ former state Representative Howard Orenstein (28.6 percent) and Children's Law Center of Minnesota Executive Director Gail Chang Bohr (20.4 percent) were the top two vote-getters in a field of eight for an open seat.

Just in time for primary election day, Hennepin County District Court Chief Judge James Swenson and Hennepin County Bar Association President Mary Vasaly have issued a press release addressing the cut in jury pay and other effects of budget cuts on the courts. They write that civil filing is now closed on Wednesday afternoons; mandatory non-binding arbitration has been shut down; supervision of parent visitation services has been discontinued; and staff has been cut that would otherwise help victims process their domestic abuse cases.

Vasaly and Swenson continue: “The results:

“The time it takes to process civil judgments has doubled. One attorney noted it will now take more than two months to begin efforts to collect a multi-million dollar judgment. In that time, he fears the money will be hidden or gone. Previously, a writ was ready in two to four weeks;

“Homeowners suing a contractor for work not done will wait four to five months for a hearing date. Meanwhile, there are no funds for the homeowner to finish the incomplete home improvement project;

“If you suspect ill-treatment of your parent in a nursing home, the nursing home may file a harassment claim against you. A hearing request regarding the claim now takes two months. In the meantime, the harassment order remains in effect which bars you from seeing your parent.”

The solution is in the public’s hands. “Tell candidates for public office that it is time to properly invest in our court system. Fair pay for jury service, keeping all Hennepin County courthouse doors open, protecting children and domestic abuse victims, and ensuring that justice is not delayed all depend on it,” Vasaly and Swenson write.

Blog readers, please pass the word, and don’t forget to vote!

Minneapolis attorney and judicial candidate Jill Clark has lost her last-ditch bid for federal relief in her effort to remove the name of her opponent, Justice Lorie Skjerven Gildea, from the primary ballot, or, in the alternative, to prevent Gildea from being identified an an incumbent.

A special panel appointed for the purpose of hearing Clark's state Supreme Court petition had denied the contentious candidate's request for relief hours after arguments in the case. Clark then sought relief from U.S. Supreme Court Justice Samuel Alito, the circuit justice for the 8th U.S. Circuit Court of Appeals, asking him to prevent the "unconstitutional text" from the ballot. (Clark had argued, among other things, that identifying the incumbent as such on the ballot violates the state Constitution.)

On Sept. 5, without further comment, Alito denied Clark's application for an injunction.

Two other candidates -- Hennepin County District Court Judge Deborah Hedlund and Hennepin County assistant public defender Richard Gallo -- are also challenging Gildea in tomorrow's primary. The top two vote-getters will earn a place on the November ballot.

Despite concerns about the possibility that politics would infuse themselves into the state's judicial elections, so far its been a pretty quite judicial election season. With the primary slated for tomorrow, none of the four judicial races with a primary has turned overtly political. That's not to say that everything has been Minnesota nice, mind you.

In one of the two Supreme Court races, Minneapolis attorney Jill Clark has filed legal challenges seeking to disqualify her opponent, Justice Lorie Skjerven Gildea. The substance of those various complaints has been detailed in prior posts, so I won't bother reiterating them here. (Suffice it to say that a special panel appointed to look into Clark's arguments disposed of them in record time. However, Clark hasn't given up, seeking relief from the federal courts.) I've not heard much from Gildea's other two opponents -- public defender Rick Gallo and Hennepin County District Court Judge Deborah Hedlund. It will be interesting to see if Clark's combative tactic of filing these court actions -- and of getting the resultant media coverage and name recognition -- translates into enough votes to get her through the primary. (Only the top two vote-getters will be on the general election ballot in November.)

The second Supreme Court primary pits Justice Paul Anderson, the second most senior of the high court, against 9th Judicial District referee Tim Tingelstad of Bemidji and attorney/ software engineer Alan Nelson. Tingelstad, who has run before unsuccessfully for a high court and a District Court judgeship, emphasizes his experience as a referee and his "biblical worldview." As for Nelson, if he kept a profile that was any lower, he'd be able to star in an episode of "Lost." He has not provided us or the Star Tribune for that matter with a photo, he has not answered our questionnaire (and did not give much of a response to the Strib) and responds to questions only via e-mail. (He does have a website though).

As for the two District Court judgeships up for grabs in Ramsey and Hennepin, it's anybody's guess who will prevail tomorrow. There are eight candidates in the Ramsey race and six candidates in the Hennepin race. I live in Hennepin County and received a number of direct mail pieces from candidates for that seat. I think there are a number of very good choices for both seats, so I am looking forward to seeing how those races come out.

For information about the candidates involved in tomorrow's judicial primary, check out the Minnesota Lawyer Judicial Elections 2008 website.

The Minnesota Supreme Court has issued a 35-page per curiam opinion in the case of Clark v. Pawlenty, Jill Clark’s challenge to the election procedures governing the upcoming Supreme Court race. Clark is challenging incumbent Lorie Gildea, along with Hennepin County District Court Judge Deborah Hedlund and attorney Richard Gallo.

The court –actually a specially designated panel, since the sitting court recused itself--last month denied Clark’s request to strike Gildea from the ballot or at least strike the incumbent designation. Clark argued that Gildea, as an appointed justice, was barred by the Minnesota Constitution from running for election to retain her seat. She also argued that the appointed justice should not be designated an incumbent and that the use of the incumbent designation was prohibited by Minn. Stat. sec. 204B.35 as well as the state and federal constitution. A full opinion was issued today.

The court’s opinion addresses the primary election and the general election separately. Addressing first the primary challenge, the court denied the petition on the grounds of laches. “[I]n the absence of the relief requested, petitioner Clark has not been barred from the primary ballot and petitioner [Heather] Robins will not be barred from voting for her (or any other candidate on the primary ballot). Given petitioners’ unreasonable delay in asserting the interpretations of the constitution and election statutes that they espouse here, and balanced against the significant potential prejudice to other candidates, and to the electorate, we conclude that it would be inequitable to grant the relief sought by petitioners with respect to the primary ballot even if we were to conclude that their arguments had merit. Accordingly we deny the petition on grounds of laches with respect to the primary ballot,” the court said.

The court then decided it would address the general election in advance of the primary results, in the interests of judicial economy and to remove uncertainty from the election process.
It then turned to Article VI, sec. 8 of the Minnesota Constitution, which says that when a judge is appointed to fill a vacancy, the “successor” must be elected at the next general election occurring more than one year after the appointment. The court declined to interpret “successor” as excluding the appointed judge currently holding the seat.

It also said that under the common usage of the word “incumbent,” Gildea could be designated an incumbent even though she was appointed to the seat. The court also concluded that the petitioner did not present any facts supporting her argument that the designation “incumbent” conferred an advantage, let alone an unconstitutional advantage. “[T]he effect of the challenged provisions on the asserted candidate and voter rights is no more than de minimis and does not warrant strict scrutiny. The purpose of the incumbent designation—to inform the voters—is sufficient to justify the minimal intrusion, if any, on petitioner’s First Amendment rights. We concluded that petitioners have not established any violation of their First Amendment rights.”
Clark is seeking an injunction from U.S. Supreme Court Justice Samuel Alito, the Eighth Circuit justice. She told Minnesota Lawyer today that she is advised that her petition was filed with the Supreme Court on Sept. 3 and is on its way to Alito.

Members of the Supreme Court panel were Acting Chief Justice James Gilbert and Acting Associate Justices Lawrence R. Yetka, Bruce D. Willis, Gordon W. Shumaker and Marilyn B. Rosenbaum.

We've written about RNC protests from the morning-after "riot court" perspective, but what about as-it-happens? Are the people as stupid, and the police as nasty, as many would have us believe? And what's with the bandanas?

I don't know — I'm not brave enough to find out. But thankfully, others in the media are.

A good reporter friend of mine was at the Target Center last night to stand vigil outside the Rage Against the Machine show. There were lots of RNC protesters. There were lots of cops. There were lots of arrests.

But here's a view from the inside, told first-person on his blog:

Oh. Man.

I almost got arrested tonight while on assignment covering RNC-related protestors. I had to kneel in the middle of the street with my hands on my head and a pepper spray gun trained pretty much directly on me. I then had to beg my way out of a mass arrest that netted 30 others. I'm glad I didn't have to spend the night in jail, but it all worked out swimmingly given that I have such a beautiful and trustworthy smile... :)

The whole entertaining story is here, at the From Minneapolis Media Dude, With Love blog.

A group of protesters march through downtown Minneapolis after a Rage Against the Machine concert during the Republican National Convention on Sept. 3, 2008. (Associated Press/Matt Rourke)

Courtroom 101 of the Ramsey County Law Enforcement Center Wednesday morning was bustling but well organized, as dozens of court employees, sheriff’s deputies, volunteer defense attorneys, county prosecutors, defendants and lookers-on conferred, scattered, and waited for their turn in front of District Court judge Joanne Smith.

Of the nearly 300 protesters arrested Monday and Tuesday in confrontations related to the Republican National Convention, about 80 were on the arraignment center docket for Wednesday.

Although it took until nearly 11 a.m. for the first case to be called, Smith and the attorneys present made short work of most cases, rambling through more than 10 in the first half-hour -- presumably to complete arraignments for defendants who by noon would have been held for 36 hours.

First up was Andrew Paul Temperante, who was charged with unlawful assembly. Volunteer defense attorney Conor Tobin presented a bail argument for Temperante -- who showed some civic pride by appearing in a Minnesota Timberwolves jersey -- by saying that his client was a lifelong resident of the Twin Cities who held a fulltime job at the Wedge Co-op in Minneapolis. Smith saw it the defense’s way, and released Temperante on reduced bail of $100 while continuing his initial court appearance until Sept. 25.

Noting the pace at which cases were being processed, one volunteer attorney was heard to remark, “My client has 10 people ahead of her, but the way they’re moving, I don’t dare leave to use the bathroom.”

With the state's judicial primaries now less than a week away, don't forget to check out Minnesota Lawyer's online judicial elections guide for full information about the judicial candidates involved in the four primary races. There are two state Supreme Court seats on the primary ballot. There will also be one trial court judgeship on the Hennepin County primary ballot, and one on the Ramsey County ballot.

You can get bios and photos of the candidates -- as well as their responses to Minnesota Lawyer's candidate questionnaire -- by clicking here. Don't forget to vote on Sept. 9!

Since (protest arrests aside) the Republican National Convention is occurring primarily in the political rather than the legal realm, we have not put much about it here. (I would suggest checking out two of our sister publications, the St. Paul Legal Ledger Capitol Report and Politics in Minnesota, for local convention coverage.)

I will say that for selfish reasons I was disappointed to hear that John McCain had jilted the governor of our fair state at the vice-presidential altar.

If McCain should win the election, I have no doubt Tim Pawlenty's efforts will be amply rewarded with some high-falutin' post in D.C. So, despite media reports of some bruised feelings in how the VP-selection process played out, I suspect Pawlenty will quickly shake off the dust and go about the business of stumping for his candidate. Therefore, it's not for Pawlenty you should be shedding tears, but for Minnesota Lawyer, which has now lost a great potential hook to this exciting election -- the first Minnesota lawyer on a major party's presidential ticket in 24 years.

There are some striking similarities between Alaska Governor Sarah Palin and Pawlenty. Both are governors who hail from Northern states, both like winter sports, both have sterling conservative credentials and both have last names that start with "P" (which apparently already has already caused some confusion). There are, of course, a few major differences (e.g. that pesky Y-chromosome Pawlenty carries).

There is another difference that interests me -- unlike Pawlenty, Palin is a nonlawyer. The choice creates a contrast between the competing party tickets. Both candidates on the Democratic presidential slate are lawyers, while both Republican candidates are not. Despite his lack of legal training, McCain can certainly hold his own in a debate. Palin remains a question mark at this point. It will be interesting to see what happens when she debates Joseph Biden, the formidable senator from the great state of Delaware who graduated from law school when Palin was 5. Going in as such an underdog could play to Palin's advantage. We will have to wait and see.

In the meantime, I would suggest that the lawyer candidates keep their distance from the current VP, who has a history of gunning for lawyers ...

Administrative Law Judge Eric Lipman has featured an interesting piece of legal research on his blog, “Within the Scope.” He notes that Harvard Law School Professor Cass Sunstein has concluded that the ideology of a judge’s colleagues is a better predictor of an outcome than the ideology of a judge. He argues that is because dissents are often futile and difficult to produce. Sunstein and colleagues studied 4,500 federal Court of Appeals three-judge panel decisions on administrative law that have been issued since 1995.

Lipman quotes Sunstein: “Dissenting opinions might also cause a degree of tension among judges, a particular problem in light of the fact that judges must work together for many years. According to informal lore, a kind of implicit bargain is struck within many courts of appeals, in the form of, “I won’t dissent from your opinions if you won’t dissent from mine, at least not unless the disagreement is very great.” All of these points help to account for the great power of “the ideology of one’s colleagues” in producing judicial votes.

Lipman continues, “Comparing actual panel votes against a stereotypically liberal position (and the numbers likewise work in reverse if you were to measure panel members against the stereotypical conservative position), Sunstein asserts that the greater the concentrations there are of particular types of appointees on an appellate panel (whether Republican or Democrat) the greater the movement there will be away from a neutral position. Thus, the more unified panels of Republican appointees there are, the more conservative results; the more unified panels of Democratic appointees there are, the more liberal the outcomes.”

Reasonable minds can differ on whether this is revelatory or a dog-bites-man conclusion. Lipman finds it “chilling.” He writes, “Are we really at the point where we say: ‘Tell me who has been assigned to the three-judge panel and I’ll tell you whether or not the agency acted lawfully?’”