Minnesota Lawyer Blog

A few weeks ago, I posited in a post ("A double standard?") whether their was any significance to the fact that the general media had intensely scrutinized issues involving Republican U.S. Attorney Rachel Paulose's Office, but had virtually ignored issues at DFL Attorney General Lori Swanson's Office. I provocatively threw it out for comment whether their differing political affiliations may have played into the disparate media coverage. That post led to a lot of debate.

I was curious if things had changed at all after it was revealed on April 26 that there were indeed significant management issues at the AG's Office and that the employees there were battling to unionize. So I went through the Star Tribune's archives and pulled up all the articles or blog entries chronicling issues at the two offices from April 27 until today. Here is what I came up with:

Issues at AG’s Office
-- “DFL rift exposed in fight between AG’s Office, Union” (4/27)
-- “Swanson-AFSCME Dispute intensifies” (4/28)
-- “Hatch quits post in AG’s office” (5/2)
-- Nick Coleman: “Mad Mike made for one AG too many” (5/2)

Issues at U.S. Attorney’s Office
-- Nick Coleman: “We need to know the answers about Paulose’s assent” (4/27)
-- “Former U.S. attorney was on early fire list” (4/28)
--- Correction: Letter stating Paulose went to “tier four” law school incorrect; she went to Yale (5/4)
-- “Ellison seeks Justice Department documents on Heffelfinger, Paulose” (5/9)
-- The Big Question Blog: “Assistant U.S. attorneys to Paulose: Quit dissing us and clear our names” (5/9)
-- “Workers who left Paulose’s office protest remarks” (5/10)
-- Editorial: Minnesota still needs answers from Justice (5/11)
-- “Gonzales: Justice Department working with Paulose”* (5/11)
-- “Gonzales Addresses concerns about Paulose”* (5/11)

* Although these last two stories both appear on the Strib’s website, they appear to be different versions of the same story.

The thing that kind of struck me is not so much the difference in the number of mentions between Paulose and Swanson (although it is substantial), but the fact that the Strib coverage of the AG's Office goes completely blank after Hatch announced that he was quitting. I guess Strib readers are not really all that concerned where that leaves things or what is happening with the unionization attempt now that Hatch has left. And this is before the recently announced cuts in the size of their newsroom. What will coverage be like after? Sigh.

Today's Star Tribune features an article discussing statements made by U.S. Attorney General Alberto Gonzales to Rep. Keith Ellison, D. Minn., yesterday during a House Judiciary Committee hearing. According to Gonzales, the Department of Justice is working with Minnesota U.S. Attorney Rachel Paulose to improve her performance and that if improvement isn't seen, the Department would consider replacing her.

Apparently, this was the first time Gonzales or anyone in his office has said anything publicly about developments in the Minnesota U.S. Attorney's office.

Without making any comment as to Paulose's job performance, isn't it obvious that the Department of Justice should replace a U.S. Attorney whose performance isn't adequate? Is this really news?

A fond farewell to the column of the Strib's James Lileks, who goes out in style today with a nice piece worth checking out: Daily Quirk: See you in the funny papers.

The Minnesota Supreme Court today struck down as unconstitutional a portion of the visitation statute that places the burden on a custodial parent to prove that visitation by an interested third-party would interfere with the parent-child relationship.

Marilyn Johnson and Nancy SooHoo ended a 22-year relationship in the fall of 2003. During that time, Johnson adopted two children from China. SooHoo did not adopt either child but the couple co-parented the children and recognized themselves as a family unit. SooHoo sought visitation rights. A Hennepin County District Court judge awarded SooHoo visitation.

The Court of Appeals upheld the trial court judge's decision, and the Minnesota Supreme Court today affirmed that decision.

However, in a portion of the decision not affecting the visitation award in the present case, the high court found the burden of proof is be on the party seeking visitation to establish by clear and convincing evidence that the visitation will not interfere with the parent-child relationship.

The 20-page decision is SooHoo v. Johnson.

Intellectual property, business law, free speech and privacy, telecommunications, criminal law -- these and other areas of law are undergoing rapid, fundamental changes as a result of emerging technologies. But who has the time to track new technological developments in these areas, and to relay them in a meaningful way to the rest of the staff? If recent poll results are any indication, those chores are being distributed almost haphazardly.

Fios, an Oregon-based electronic discovery and litigation service, recently asked participants in one of its webcasts, "Who in your firm is responsible for directing traffic at the intersection of law and technology?" The answers, coming from an audience split between law firms and corporations with in-house counsel, showed no clear answer:

• General counsel: 12 percent
• IT staff: 16 percent
• Staff attorneys: 24 percent
• Paralegals: 4 percent
• Litigation/practice support staff: 30 percent
• Partners: 14 percent
• Associates: 0 percent

Broken down further, the poll found that within firms, support staff are primarily responsible for tracking these changes 52 percent of the time, while within corporations it's more likely to be a staff attorney (35 percent) or someone from IT (22 percent).

The results seem to speak to a quandary about who is qualified for this task. IT staff are likely to understand the technological developments, but not the legal ones. Attorneys, vice-versa. As a result, support staff are called on to be generalists capable of working both sides of the street.

Is it time for firms and corporations to develop positions that specialize full-time in legal technology? By assigning that beat on a catch-as-catch-can basis, it seems more likely that new developments in this area could be missed or misunderstood.

Ramsey County District Court Judge David Higgs disqualified Faegre & Benson from representing the Star Tribune it in its dispute with the St. Paul Pioneer Press over the departure of publisher Par Ridder.

Higgs based his order on the fact that Faegre's Denver office has represented the Denver Post, MediaNews Group Inc.'s flagship newspaper. MediaNew Group also controls the Pioneer Press, which the judge found created a conflict of interest. Higgs was unpersuaded by Faegre's argument that there was no conflict because the two lawyers who handled the work for the Denver Post were leaving the firm.

See "Judge: Law firm can't represent Star Tribune" for more coverage.

Ah yes, almost makes one feel sorry for the Faegre media law group. The newspaper battle of the century is shaping up, and they will have to read about in the press like the rest of us. While some might call this order a disqualification, I prefer to refer to it as an "involuntary buyout."

Gov. Tim Pawlenty yesterday signed the Omnibus Public Safety Funding and Omnibus Bill that, among other things, funds 10 new judge units -- seven for the District Courts and three for the Court of Appeals. Our friends at the Pioneer Press reported 15 new judges but that's in error, the state court administrator's office assures us. Minnesota Lawyer will bring you complete details on the court funding bill in next week's paper.

A recent article in the Star Tribune focused on the spate of ethics complaints against Dakota County judges, but there was no comment from the Board on Judicial Standards or its chair, 10th Judicial District Judge James Dehn.

Dehn recently pointed out to Minnesota Lawyer that the board’s most recent report shows that about one in every 1,200 cases handled by a judge generates any contact with the board. Furthermore, the board received 127 written complaints last year compared to the approximately 2.06 million cases handled by judges. Thirty-five judges were asked to respond in writing regarding alleged misconduct, and no public reprimands were issued.

However, Dehn issued a slight disclaimer about his statistics: “There are three types of judges out there. Those who can add and those who cannot.” (Same for lawyers and journalists, I might add ... er say.)

Cases involving the alleged fixing of tickets by two Dakota County judges are under advisement and a public reprimand was issued against a third judge in the county, William Thuet, who agreed to it. Thuet was charged with inappropriately accepting a guilty plea to a DWI involving a former neighbor and procuring the same woman’s release from custody on another occasion.

The Strib also reported over the weekend that “the system that Minnesota has in place to block anyone who has been committed for psychiatric disorders from buying a gun or obtaining a carrying permit appears to have a serious flaw: The state Supreme Court apparently is not complying with a law that requires it to notify the DHS whenever a judge commits a person to community-based treatment programs, said Patrice Vick, a DHS spokeswoman.”

The director of communications for the state court system, John Kostouros, provided Minnesota Lawyer with the complete explanation, which he also gave the Strib:

“The courts have a manual procedure for notifying [the Department of Human Services] of commitment data. When a person is committed to a state facility, the data is provided to DHS by service of the commitment order. When a person is committed to a private facility or there is dual commitment, there is a form which is sent from the courts to DHS. As commitments to private facilities are on the increase, DHS expressed concern that they may not be receiving notice in all cases. After discussing the possible options, DHS decided to try using public access to the MNCIS, which will provide them direct access to public data in the commitment records. DHS was provided with MNCIS public access and training information. All counties are scheduled to be using MNCIS by December 2007. Pending that transition, the Courts will continue to send the manual forms to DHS.”

MNCIS is the state’s computer system, which as Kostouros said, is still not fully operational throughout the state. The courts have been working on it for years, as they have with the criminal portion of the record system, CriMNet, which just received an additional $5.4 million in funding from the Legislature (and which Gov. Pawlenty is expected to approve.) When it’s done the whole state will be on one database and information-sharing should be expedited.

Some in Minneapolis want to see the lurking ordinance repealed and I support them. St. Paul should follow suit.

The Council on Crime and Justice reports that 800 people have been arrested or cited for lurking since 2003, which means about 200 per year for four years, which means about four people per week. About one in four of those people were white. (The Minneapolis Star Tribune reports that about 26 percent of the arrests are of whites and 58 percent are of blacks.)

The council also states: “The racial disparity in the justice system originates predominantly at 'the first point of contact' with law enforcement. While racial disparity may widen subsequent to arrest, this change is not significant when compared to the disparity that occurs at arrest. African Americans accounted for 72.3 percent of low level offense arrests, although there is little evidence that this is due to differential rates of involvement in criminal activities."

I’m not convinced that rounding up four people a week in the Twin Cities is making a significant inroad on crime and I would challenge the police and prosecutors to demonstrate that it is.

Even without any racial disparity, the idea that people can be arrested for standing around thinking about something bad is repellent. The Minnesota Judicial Council says equal treatment of minorities is a goal – repealing this useless ordinance would be a good place to start.

A Burnsville man was sentenced to 750 years in prison for creating at least 29 pornographic images of prepubescent girls in his basement.

The tip-off that helped investigators put him away: a Brownie uniform in the background of one of his photographs.

For more, see "He made child porn - and gets 750 years" in the Pioneer Press.

The sentence was meted out by U.S. District Court Judge James M. Rosenbaum.

St. Paul attorney Earl Gray had a great quote in the article about the defendant's prospects on appeal.

"If you appeal the sentence to the 8th Circuit Court of Appeals, they'll probably give him 1,500 years," Gray said. "They're tougher than Rosenbaum."

Was justice served here?

The Justice Department will not try to prevent Congress from granting immunity to a former department official to testify about the firing of eight federal prosecutors, the Pioneer Press reports on its website.

In a letter to House Judiciary Committee Chairman John Conyers, D-Mich., officials from two Justice Department offices investigating whether the department played politics when hiring prosecutors said they would prefer not to see the department's former White House liaison, Monica Goodling, given immunity.

"However, we understand the committee's interest in obtaining Ms. Goodling's testimony," the letter said. "Therefore after balancing the significant public interest against the impact of the committee's actions on our ongoing investigation, we will not raise an objection or seek a deferral."

For more, click here.

The Strib just posted this:

The Star Tribune announced plans Monday to reduce its workforce by about 145 employees across the company, primarily through voluntary buyouts. Editor Nancy Barnes said she will be restructuring the newsroom and will operate with about 50 fewer employees. Click here for more.

I wish had a way to put a good a face on this, but there just isn't. The entire state will be impacted by these short-sighted cuts. The bloodletting was not unexpected, but is unfortunate nonetheless.

The Star Tribune today notes that a bill providing $2 billion for prisons, courts and the Department of Public Safety has a high level of support at the Capitol. The measure would also provide $3.4 million for services to battered women and children and $2 million to put more police on city streets.

After DFLers removed a controversial provision on litigation over insurance claims, the bill passed the Senate 65-0 and the House 124-6. Gov. Tim Pawlenty said he will sign it next week, the Strib reports.

An update on a prior post ("Strib columnists may be Par-ed back"), Strib metro columnist and veteran blogger James Lileks reports on his blog today that "they've killed my column, and assigned me to write straight local news stories."

In related(?) news, the Rake reports that the Strib has scheduled an ominous 3:00 p.m. meeting for today in which staff reductions and/or additional voluntary-buyout opportunities may be announced. (Click here for more.)

After finally sifting through the 58-page Quie Commission report (which was issued in late March), I am still not 100 percent sold on the majority's recommendation that Minnesota adopt a retention system for judicial elections. (Under a retention system, voters cast a ballot on whether or not a judge should be retained; this differs from our current system, which allows challengers to run against specific judges.)

While retention elections stop someone from getting elected to the bench by using politics or money from special interest groups, they do not keep someone from getting voted off the bench after political or special interest groups finance "do not retain this judge" campaigns. Moreover, judges may not know whether they will have to raise money to fend off such a campaign until it is too late.

The minority position was to convert Minnesota to a pure appointment system whereby the governor would make the selection from a list of candidates presented to him by merit-selection commission. Of course, this approach eliminates direct accountability to the people through the ballot box.

Other alternatives include leaving things as they are (which runs the risk of allowing highly politicized judicial elections in Minnesota) or having some sort of legislative involvement in the process, as committee member Eric Lipman posits in his own intriguing proposal. (I have to put some more thought into this one.)

All of the major alternatives have some pretty sizable drawbacks, so I find myself still pondering the correct course. There are no easy answers here. To paraphrase Winston Churchill's famous axiom about Democracy, I think we will have to go with the option that is the worst -- with the exception of all the other options, that is.

Seventy years ago today the 804-foot-long German dirigible Hindenburg met its fiery end in Lakehurst, N.J. ("Survivors Remember Hindenburg's Fiery End.")

A total of 35 people on board and one person in the ground crew died in the tragedy; 62 passengers and crew members survived.

Flammable hydrogen had to be used because of a U.S. embargo on nonflammable helium to Germany. The cause of the disaster is still debated. The most accepted theory is that static electricity from the day's storms ignited leaking hydrogen.

One wonders if such an incident were to occur today how massive the lawsuits would be. The people who were killed died horribly, mostly burning to death. More than 1,000 sightseers were watching as the vessel exploded into a ball of fire. The survivors still vividly recall it seven decades later.