MinnLawyer Blog

Justice Helen Meyer

We have blogged before how the Minnesota Supreme Court increasingly issued 4-3 decisions with the same cast of characters making up the majority and minority.

In the majority has been (now former) Chief Justice Eric Magnuson and Justices Lorie Gildea, G. Barry Anderson and Christopher Dietzen. For want of a better word, we’ve called this the “conservative” bloc - although I have never liked that word applied to the judiciary. (I’m suppose “strict constructionist quartet” just doesn’t sound sexy enough.) 

In the minority have been Justices Alan Page, Helen Meyer and Paul Anderson. We might call this the more “liberal” justice bloc (although again, not a great word applied to the judiciary.)  Page is getting a reputation as the court’s “Great Dissenter,” and can be reliably counted upon to be on the “liberal side.” Meyer is usually with Page. Paul Anderson has probably been the loosest member of this confederation, but more and more has stood with Meyer and Page. You can’t really say Anderson has changed so much as stayed in the same place as the court has increasingly moved right under Gov. Tim Pawlenty.

With the appointment of David Stras, not much is expected to change as far as how 4-3 decisions break down. Stras, a conservative legal scholar, is expected to sub for Magnuson in the four-justice majority. In fact, Magnuson departed from the majority occasionally in a high profile case or two — such as the unallotment case — so, with Stras, the division may be even more ingrained.

However, Stras, as a new member of the court, isn’t taking part in decisions that court is releasing right now. It will take a bit of time for him to be up to speed and participate. Thus, the court is now releasing six-justice rulings, making a 4-3 split impossible.  Nobody really wants a 3-3 split, which wouldn’t have precedential value and would keep the lower court ruling in place, effectively making the high court a nonplayer.

So who’s the swing vote in this odd interim period until Stras starts flexing a little muscle?

Ladies and gentleman, I present today’s candidate, Justice Meyer!  The court today issued a 4-2 ruling in an equitable relief case between two lenders in Citizens State Bank v. Raven Trading Partners. The “conservative” bloc stayed intact - Gildea, Dietzen and Barry Anderson - but had Meyer joining them.

 I don’t know if you could call this one a conservative or liberal case — the dispute was over mortgage priorities.  The first mortgage holder delayed 38 days in filing its mortgage. The second mortgage holder knew of the first mortgage, but filed first because of the delay. Applying equitable subrogation, the trial court judge gave priority to the first mortgage, even though it was filed second in time.

The majority concluded equitable relief was not available to help a party that delays in filing without a good reason. In his dissent, Page argued that the majority was Monday morning quarterbacking, reweighing the equities of the case and thereby divesting the trial court of its authority.

The case makes it a little tougher to get equitable relief if your hands are not completely clean. The conservative bloc likes to base decisions on statutory language, so, in that respect, I can see how it might not like to see a trial court resorting to equity withoutvery strong reasons. I’m not sure what motivated Meyer to join them in this case. Maybe, as a former personal injury lawyer, she doesn’t like to see companies delaying without good cause and then begging for a break. (Just think how many insurance companies must have dragged their feet in making payouts to her clients.)

It will be interesting to see if this “interim alliance” repeats itself as we wait for Stras to get up and running.  In the meantime, not e to Justice Meyer: Sometimes, it’s good to be king.

A few weeks ago I did a story about some good advice for representing a less than ideal defendant.

During the reporting, I asked a few defense attorneys in town, who had represented high profile clients, to share some of their tips when it came to defending a client they didn’t think a judge or a jury would like. The idea was that there are some defendants that for whatever reason it would be hard to get past that initial impression.
I asked Jon Hopeman, of the attorneys I interviewed, if he had any rules when it came to calling his own client to testify. Hopeman, who represented Tom Petters in his Ponzi -scheme case, said that it depends on how the case is going.

“If you don’t like the look in a jury’s eye, sometimes you don’t have a choice,” Hopeman said.

He doesn’t have a hard and fast rule but said sometimes your client is his own best witness.

I thought of that story after I read this one. It appears former Illinois Governor and reality TV star Rod Blagojevich will not take the stand in his defense in the corruption charges against him.

What can we glean from this? I submit two theories. Either the government’s case against Rod wasn’t as strong as his lawyers thought so they decided there was no need to go to their Ace in the Hole, or two, (and I think this is the most likely) Rod’s lawyers agreed that he is a narcissistic, attention craving lunatic and is liable to shoot himself in the foot if he ever places his hand on the Bible and takes the stand.

Blagojevich silenced by his own lawyers

The Minneapolis Star Tribune has reported the death of Sandra Gardebring Ogren, who served as a Minnesota Supreme Court justice from 1991 to 1998.  At the time of her death, Ogren was vice president for advancement at California Polytechnic State University and was 63 years old.

Aaron Biber

Former Minnesota State Bar Association treasurer Aaron Biber pleaded guilty to criminal sexual conduct charges today. The Strib has the story (click here). Here’s a quote from the article:

The fact is I committed this crime. I don’t want to put the victim, his family, my family, my sons and my former wife and colleagues through this,” Biber said. “I’ve been in therapy the past few months and I feel this would be a positive step in my therapy.”

I don’t have much more to say on this other than it closes out a very sad chapter.

As we reported last week, Marie Wolf has left the state appellate public defenders’ office. She says she was fired after asking to leave management and return to a full-time caseload. Unsurprisingly, the PDs have not taken this quietly, and have sent a letter of protest signed by nine lawyers to Chief Appellate Defender David Merchant, as well as State Public Defender John Stuart, Chief Administrator Kevin Kajer, and the board of public defense. They request Merchant to honor Wolf’s request to remain in the office as a practicing attorney and not a manager and term themselves and the office “even further demoralized.”

Interestingly, the letter also says that it was announced at the recent public defender chief’s meeting that the budget is on better footing and more attorneys will be hired.

Is this "The Scream" -- or just another law grad preparing for the bar?

Law school library carrels throughout the state are filled with hundreds of harried looking recent law grads, pulling out their hair, chugging diet sodas, sleeping on top of their law books and plugging into podcasts on fascinating topics such as civil procedure. Yep, you guessed it, it’s bar exam time once again.

The summer administartion of the biannual test/ rite of passage lawyers will be held Tuesday and Wednesday of next week (7/27 and 7/28) at the RiverCenter in St. Paul. So happy and relaxed at their graduations just a couple of short months ago, these would-be lawyers have enough angst to make Munch’s “The Scream” look like one of those yellow smiley faces.

But never fear you poor sweating masses of unwashed, unshaven and unhappy learners of the law. Close to 90 percent of Minnesota bar exam takers pass — one of the highest pass rates in the country. Odds of 9 out of 10 ain’t bad at all. The odds are much lower for say snaring that first law job.

So prepare to the best of your ability (you don’t want to be part of the unfortunate 10 percent after all), but also try to keep things in context and give yourself a break every now and then.

If you just cannot shake the stress, there are resources there to help you — such as the good folks over at Lawyers Concerned for Lawyers. I’m assured by Joan Bibelhausen, the group’s executive director, that it is also concerned for would-be lawyers and would “absolutely” welcome your call and offer assistance.

David Stras, with his wife and son, shortly after Stras was sworn in. Stras' son is holding the Hebrew Bible used by his father in taking the oath of office.

Last Monday, family in tow, David Stras placed his hand on the Hebrew Bible that and was sworn in as the newest associate justice.  

Stras adds a lot to the court in terms of diversifying its demographics. At 35, he’s the youngest member of the court by 13 years.  He’s the only member of the high court bench to join the court after being a full-time academic (he was a law professor at the U of M).  And Stras is the only Jewish member of the high court. (Stras is  a member of Bet Shalom Congregation.)

But is Stras the first Jewish member of the high court?

The answer to that simple question turns out to be pretty complicated. A variety of sources told me that they believed that Stras was the second Jewish high court justice. When I pressed, however, they couldn’t come up with a name.

I turned to Justice Paul Anderson, who has at his fingertips an arsenal of historical information about high court history. He told me that he has heard that Lee Loevinger, who briefly served on the court from 1960-61 may have been Jewish. However, Anderson told me he had been unable to confirm that belief.

I did my own Internet search and soon ran into the same brick wall that Anderson had. Loevinger’s obituarysaid nothing whatsoever about services and provided no hint as to religion. On the other hand, I did discover that Loevinger was a very interesting guy. He left the high court after just a year because President John F. Kennedy tapped him to head the Antitrust Division of the Department of Justice. In that post, he won a landmark antitrust case that he personally argued before the U.S. Supreme Court. He later became an FCC commissioner.

In his role with the FCC, Loevinger told the Minneapolis Tribune in 1967: “It seems to me that television is the literature of the illiterate; the culture of the lowbrow; the wealth of the poor; the privilege of the underprivileged; the exclusive club of the excluded masses.” However, the piece goes on to report that Loevinger privately called television “the idiot box,” his daughter was quoted as saying in his obit.

None of this helped me in my quest to discover whether Loevinger’s religion.  I did several Web source reporting that Loevinger referred to antitrust as his “secular religion.”

I tried calling Loevinger’s daughter, a semi-retired doctor in Wisconsin, to get some more biographical info, but she hasn’t returned the call. The big Washington, D.C., law firmwhere Loevinger spent the latter part of career was more helpful. After a lot of checking with his former coworkers, a very nice staffer got back to me and told me that one of his ex-partners recalled that Loevinger’s father was Jewish, but Loevinger himself attended Unitarian services.

The local Cardozo Society – an affinity group for Jewish lawyers, judges and law students – was also very helpful. It also could not come up with a definitive answer, but, after a little research, heard from its sources information substantially the same as I got from the D.C. firm.

Thus, while Loevinger’s father, a Minnesota trial court judge, may have been Jewish, it appears that his son was not a practicing Jew. (No one was sure what the religion of Loevinger’s mother was.)

Thus, with all the qualifiers in place, I think we can safely that David Stras is believed to be the first practicing Jew to hold a seat on the Minnesota Supreme Court.

I can say definitively that Stras is not the first justice from Kansas. Justice Anderson was kind enough to point out to me that Justice Rosalie Wahl, the first woman appointed to the high court, also hailed from Kansas.

UPDATE: I just heard from a nephew of Mr. Loevinger, who confirmed the basic facts of this post. Mr. Loevinger’s sister, Jane Loevinger, a noted psychologist, wrote an autobiographical article entitled “Confessions of an Iconoclast: At home on the Fringe,” which provides more information about the family life of Mr. Loevinger. The article was published in the Journal of Personality Assessment in 2002.

Minnesota Lawyer has a story this week on Tuesday’s decision from the Court of Appeals dealing with service of process.

In State v. Briard, a sheriff’s representative attempted to serve a subpoena on a woman by leaving the subpoena with her husband at their home in Frazee, which is near Detroit Lakes. The problem is that the subpoena required the woman to appear as a witness at her husband’s crim-sex trial. When she failed to appear she was charged with felony criminal contempt.

My first reaction, like at least a couple of the attorneys I talked to about the decision, was “duh,” why would you leave a subpoena with the defendant?

But the more I thought about it, and after talking with the prosecutor on the case, the more I thought well, what else are you supposed to do in this situation? How do you serve someone who doesn’t want to be served?

I can’t imagine a law enforcement officer is going to set up shop outside someone’s home and wait for them to eventually show up. And while a process server would probably do that, it’s going to cost you. And even then, what if the person purposely doesn’t come home, knowing that someone is trying to serve him or her?

I’m sure the situation in Briard isn’t all that common, although I could see it coming up occasionally in domestic abuse cases. And, of course, I don’t know what went on behind the scenes in the case, but it could be that the county simply got fed up with trying to serve the woman personally and felt it had no choice but to leave the subpoena with the husband at her home.

In any case, the Court of Appeals ruled that the service was improper, which is probably the right decision, at least on a practical level. But I am still left with the question of what should the state do in a situation like this where it isn’t able to personally serve someone?

Tags: Service of process; subpoena

Marie Wolf, one of the three managing attorneys at the appellate division of the state public defenders, has either been fired or resigned. But her last day is July 23rd.

In a weird twist today Wolf notified her boss David Merchant that she wanted to resign her post and step back into a full-time attorney position and handle cases. Instead Merchant sent out an e-mail to the attorneys and staff at the office that he had accepted her resignation. Wolf followed that e-mail with another one that said she offered to stay on as a full-time attorney.

This is the latest chapter in the ongoing turmoil at the appellate division. Wolf was one of the attorneys critical of the board of public defense’s decision to hire Merchant back in February. He came from the employment law division at the Minnesota Attorney General’s Office and some attorneys argued he lacked the necessary appellate work experience for the position. Wolf resigned her post in protest of the hire. Merchant beat out at least two other candidates from within the office, and a third who had done work there.

Several attorneys at the office sent letters to Gov. Tim Pawlenty and the board asking them to reconsider their decision to hire Merchant.

(More on the background of this story here)

Someone told me that job interviews are like first dates. Or maybe it was that first dates are like a job interview. I can’t remember.

I have a few friends who are in various stages of their job searches right now, in and out of the legal profession, and sometimes they talk to me about what came up in the interview. Some people I know are great interviewers, and others who may be immensely talented and qualified simply fall apart once they sit down across the table from the interviewer. Some people swear they can tell if the interview was going or bad almost right away while others have been surprised when they were offered a job after they thought they fumbled through the interview.

I found this interview with a hiring partner at a firm in San Diego. She’s got some good advice on how to interview successfully and its mostly common sense. Don’t chew gum, do your homework on who you are interviewing with and show some interest in the firm.

I’m not surprised to learn that bigger firms are looking for job candidates with some real work experience. With grade inflation out of control, job seekers need to do even more to set themselves apart.

Any good job interview horror stories, or ‘dos and donts’ list of interview strategies?