MinnLawyer Blog

A lot of hard work paid off today when the Senate confirmed the nomination of Jane Kelly of Iowa to be the next 8^th  Circuit judge by a vote of  96-0.  Kelly will be only the second woman ever to serve on the Court of Appeals. She has served more than 20 years as a federal public defender.  The vote is available here.

Kelly sailed through a friendly judiciary committee hearing, with Iowa Sen. Chuck Grassley throwing her the softest of balls when he asked her if she thought judges should give up on the constitution. She said no, and Minnesota Sen. Al Franken said, “I was holding my breath to see how you’d answer that, “You did well.…The fact that you’re so heartily supported by both Senators speaks highly of you.”  At the end of the hearing, Grassley told her he didn’t think she had to worry, and he turned out to be right.

Congratulations to Kelly and also to the Infinity Project, which has worked throughout the 8^th Circuit to put another woman on the bench.

More bad news for B. Todd Jones and his uphill battle to get the U.S. Senate confirm his appointment to lead the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Roll Call is reporting the U.S. Justice Department is investigating at least two complaints made against Jones while he was the U.S. Attorney for Minnesota.

The first allegations is that he improperly retaliated against a whistle blower at the U.S. Attorney’s Office. The employee alleges Jones suspended the employee and gave a lower performance review because the employee was a whistle blower.

The second complaint, made by the same attorney, alleges “gross mismanagement and abuses of authority in the Narcotics and Violent Crime Section of the U.S. Attorney’s Office, District of Minnesota.”

President Barack Obama nominated Jones to be the director of the ATF Jan. 16. The Senate has not confirmed a director of the ATF since 2006.

Gov. Mark Dayton appointed three judges in the 9th Judicial District.

Judge John R. Hawkinson will be replaced by Korey Wahwassuck, who will be chambered at Grand Rapids in Itasca County.

Anne Rasmusson

Judge Michael J. Kraker will be replaced by Anne M. Rasmusson, who will be chambered at Mahnomen in Mahnomen County.

Judge John P. Smith will be replaced by Jana M. Austad, who will be chambered at Walker in Cass County.

Hawkinson and Kraker are retiring. Smith was appointed to the Minnesota Court of Appeals.

Austad is the managing attorney in the Brainerd Regional Office of the Minnesota Public Defender. She manages the assistant public defenders in Aitkin, Cass, and Crow Wing counties. Previously, she was an attorney at Kief, Fuller, Baer and Wallner, practicing general litigation with a concentration in workers’ compensation, township law, and family law. Austad received her B.A. from Augsburg College and her J.D. from the William Mitchell College of Law. She resides in Baxter with her family.

Korey Wahwassuck

Rasmusson is a partner at Rust, Stock, Rasmusson, & Knutson where she practices primarily in family law and litigation matters. Prior to her being named partner, Rasmusson served as a law clerk and associate attorney at the firm. Rasmusson received her B.A. from St. Catherine University, her J.D. from the University of Minnesota School of Law, and her M.A. from the Hubert H. Humphrey Institute of Public Affairs at the University of Minnesota.

She previously served as the chair of the 14th District Bar Association. She resides in Crookston with her family.

Wahwassuck is an associate Judge of the Leech Lake Band of Ojibwe Tribal Court, where she hears cases and drafts opinions. Previously, she was a tribal attorney for the Leech Lake Band of Ojibwe, and, prior to that, she was a solo practitioner in Missouri and Kansas. Wahwassuck received her Bachelors of Journalism from the University of Missouri and her J.D. from the University of Missouri School of Law.

Wahwassuck helped found and preside over the Leech Lake-Cass County-Itasca County Welness Courts, the first joint tribal-state jurisdiction courts in the nation.

She resides in Solway with her family.

The Commission on Judicial Selection is accepting applications for a vacancy on the bench in the Second Judicial District. The opening is for the seat of Judge J. Thomas Mott, who has retired.

The commission will consider integrity, maturity, health (if job related), judicial temperament, legal knowledge, ability, experience, and community service.

An individual wishing to apply may request an application by writing to Lee E. Sheehy, Chair of the Commission on Judicial Selection, at 130 State Capitol, 75 Rev. Dr. Martin Luther King, Jr. Blvd, St. Paul, MN 55155, or by contacting Andrew Olson, appointments coordinator, via e-mail at andrew.c.olson@state.mn.us. A cover letter and resume should also be submitted with the application. Application materials are due by close of business, Monday, May 13, 2013. Interviews are scheduled to be held on Thursday, May 30, 2013, at the Ramsey County Courthouse in St. Paul, Minnesota.

For inquiries concerning the application process, please contact Andrew Olson at andrew.c.olson@state.mn.us or at (651) 201-3413.

Pust

Tammy L. Pust has been appointed as Chief Administrative Law Judge at the Office of Administrative Hearings, Gov. Mark Dayton announced today.

Pust is replacing Judge Raymond Krause, who is resigning effective May 3, 2013.

Pust is the current Chief Legal and Compliance Officer at the Minnesota Department of Education. She formerly served as a trial partner for Parker Rosen, LLC, conducting neutral fact-finding investigations for the State of Minnesota, Minnesota State Colleges and Universities, and private employers. Pust has also been a partner at the law firm of Jesson & Pust, P.A. and is a former assistant attorney general, where she served as the policy director for children and families. Ms. Pust received her B.A. from Concordia College in Moorhead and her J.D. from the University of Minnesota School of Law.

Pust, of Roseville, is a board member of the PACER Center, Inc., a member of the Ethics Committee for the Ramsey County Bar Association, and a former councilmember of the Roseville City Council.

From Dolan Media Newswires

The mere fact that blood-alcohol evidence dissipates over time does not by itself constitute an exigent circumstance justifying the warrantless blood draw of a drunken driving suspect, a divided U.S. Supreme Court has ruled in Missouri v. McNeely.

The decision affirms a ruling from the Missouri Supreme Court.

The defendant was arrested for driving while intoxicated (DWI) after he failed field sobriety tests and refused to consent to a breath test. A police officer took the defendant to a nearby hospital and directed a technician to take a blood sample after the defendant refused to give his consent to the blood test. The defendant’s blood was drawn approximately 25 minutes after the officer first stopped him for speeding. Test results showed that the defendant had a blood-alcohol content well over the legal limit.

The defendant succeeded in having the evidence suppressed in state court after arguing that the warrantless blood draw violated the Fourth Amendment.

Here, the state urged the court to adopt a per se rule that exigent circumstances necessarily exist for a warrantless blood draw whenever  an officer has probable cause to believe that a person has been driving under the influence of alcohol..

But the court rejected a blanket rule, instead reading its decision in Schmerber v. California (384 U. S. 757) as supporting the rule that the potential loss of blood alcohol evidence is merely one factor to consider in deciding whether a warrant is necessary.

“In short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances,” the court said.

Justice Sonia Sotomajor delivered the opinion of the Court in which Justices Antonin G. Scalia, Ruth Bader Ginsburg and Elena Kagan joined in full. Justice Anthony M. Kennedy wrote a concurrence. Chief Justice John G. Roberts Jr., filed an opinion concurring in part and dissenting in part, joined by Justices Steven G. Breyer and Samuel A. Alito Jr. Justice Clarence Thomas wrote a dissent.

Judge Jay Quam

Hennepin County Judge Jay Quam completed his first Boston Marathon yesterday at 3 hours and 45 minutes.

Twenty minutes after he finished the race, he heard what he described as two fireworks going off. He knew right away what was happening.

“You knew it was an explosion, just because it couldn’t be anything else,” he says. “Especially two of them. If it’s one, then maybe it’s a pipe thing or a gas leak, but when it’s two it’s pretty obviously a bomb.”

In an interview with City Pages, Quam described his experience in the moments after the bombs exploded and the panicked scene near the finish line. It’s worth the click.

The Fourth Judicial District Veterans Court is a success, if success is measured by recidivism, according to a state two-year review, available here.

It says that during the first six months after entry into Veterans Court, 83% of participants commit fewer offenses than during the six months just prior to entry. This pattern maintains through both years of data: 72% of participants who have at least 24 months post-entry commit fewer offenses than during the 24 months just prior to entering the court. It also says that the majority of Veterans Court participants have no new offenses while in the program, and those who do commit new offenses generally do so at a non-felony level.

It recommends a strong mentor program, the establishment of which is underway with the assistance of a volunteer coordinator.

This problem-solving court serves veteran defendants struggling with addiction, mental health issues, and/or co-occurring disorders. It promotes sobriety, recovery, and stability through a coordinated response that involves court and probation personnel along with the addition of the U.S Veterans Administration (VA) Medical Center, the Veterans Benefits Administration, and volunteer veteran mentors.

As the Minnesota Legislature debates a bill allowing collection of medical information that could be used for research, the U.S. Supreme Court will consider whether human genes can be patented.  The case is Association for Molecular Pathology v. Myriad Genetics.

But first the court will have to decide whether there is an Article III case or controversy, SCOTUSblog explains. The Federal Circuit court ruled that only one of the 20 original plaintiffs had standing. The Supreme Court granted review on the validity of Myriad’s patents, but the defendant hasn’t let go of the standing issue.  And, a question of whether there is a live controversy goes to whether SCOTUS has the authority to rule, so it will have to be considered.

The Commission on Judicial Selection recommended three candidates to Gov. Mark Dayton to fill the vacancy in the 3rd Judicial District. Judge Robert R. Benson is retiring. The seat will be chambered at Preston in Fillmore County.

They are:

Richard Jackson is the lead attorney for the Special Prosecution Unit in the Olmsted County Attorney’s Office, overseeing three attorneys and maintaining a caseload primarily of felony level domestic relationship related crimes. He previously served as the Houston County Attorney, where he acted as the chief prosecutor for the county. Mr. Jackson is an adjunct professor for the Baccalaureate Paralegal Program at Winona State University.

Matthew Opat maintains his own private law practice in Chatfield, where his practice includes areas of real estate, probate, general business, civil, and criminal law. He also serves as the prosecutor for the City of Chatfield in petty misdemeanor, misdemeanor, and gross misdemeanor violations. Previously, Opat served as the Fillmore County Attorney.

Karin Sonneman is the Winona County Attorney, handling the duties of the county’s chief criminal prosecutor and counsel for Winona County. She previously served as an Assistant Public Defender for Minnesota’s 3rd Judicial District, and, prior to that, was a private practice attorney at Sonneman & Sonneman. Sonneman is the current Vice-Chair of the Winona County Criminal Justice Coordinating Council.

The 3rd Judicial District consists of Dodge, Fillmore, Freeborn, Houston, Mower, Olmsted, Rice, Steele, Wabasha, Waseca, and Winona counties.

An announcement of the appointment will be made following an interview process over the next few weeks.