Archive | April, 2012

Proposed Legislation Would Make More Government Employee Buyouts Public

24 Apr

Twin Cities station KSTP reported yesterday night on a proposed bill, H.F. 2647, in the Minnesota legislature that would make public, with certain limitations, “the complete terms of any agreement settling any dispute arising out of an employment relationship, including a buyout agreement … except that the agreement must include all of the specific reasons for the agreement if it involves the payment of more than $10,000 of public money.” (The underlined text indicates additions to the existing language of Minn Stat. 13.43.) The bill also expands the list of public employees to which such disclosure would apply.

The bill was passed unanimously in the Minnesota House on April 16, but on April 20th the bill was “laid on the table” in the Senate after a motion by Sen. Dan Hall (R-Burnsville). I’m not totally sure what “laid on the table” means, but nothing has happened to the bill since the aforementioned laying out.

We’ll keep you posted.

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Federal Legislation Update: Violence Against Women Reauthorization Act

24 Apr

Professor Eugene Volokh over at The Volokh Conspiracy points out some potential Constitutional problems in § 1003 of the federal Violence Against Women Reauthorization Act of 2011, which, according to Volokh is being debated in the Senate tomorrow.

In a later post, Volokh noted some additional problems with the bill, specifically that a portion of the proposed legislation would expand the speech restrictions in 18 U.S.C. § 2261A, despite the fact that a federal judge in Maryland had previously dismissed criminal charges brought under the existing statute as an unconstitutional restriction on free speech.

Volokh later had a third post on the bill’s problematic title.

Constitutionality and/or policy wisdom notwithstanding, it turns out both of Minnesota’s Senators (Al Franken and Amy Klobuchar) are cosponsors of the bill. For what it’s worth, two of Minnesota’s Representatives (Keith Ellison and Betty McCollum) are cosponsors of a companion bill in the House. I believe it’s worth noting that Klobuchar and Ellison are both attorneys.

We’ll have to wait and see if these constitutional concerns are addressed in the hearing tomorrow.

Minnesota GOP

24 Apr

In a story that has interesting intersections in Free Speech, Free Practice of Religion, and Free for Alls,  the Minnesota GOP is in a showdown with the College Republicans in St. Cloud. The College Republicans have invited “a self-style hard rock pastor who has been ardent in his opposition of homosexuality.”  He is probably best known for his prayer in the Minnesota house that was widely derided as offensive, both for its content and because of its orator:

The issue captures the difficulty the GOP is having in posturing for November elections and ballot measures.

Speedy links for Monday:

24 Apr

Here’s a few tidbits in the news that are at lest tangentially related to free speech issues:

Some interesting reporting in the Duluth News Tribune about city and county pension plans, information about which was presumably obtained through the Minnesota Data Practices Act. It’s nice to see this kind of information being uncovered (not by the paper, but by the Illinois-based Taxpayers United of America), but proponents of the public pension plan seem to think that the TUoA didn’t provide a particularly comprehensive report. Of course, we here at the Void don’t care about things like entitlement reform or taxes (blech), we just thought the transparency brought to bear on the Public Employees Retirement Association of Minnesota is worth commenting on…

The Strib, the PiPress and MPR all reported on the decision by a federal administrative law judge that a local Jimmy John’s franchisee violated the labor rights of six former employees when it fired them for hanging up posters  near Jimmy John’s  restaurants protesting the restaurants’ sick leave policy. I couldn’t find a written version of Judge Arthur Amchan, but according to the Strib, Amchan “ruled that the posters were protected speech under the National Labor Relations Act.” Again, no position on the labor issues, but the term “protected speech” (which as far as I know is solely Mike Hughlett‘s term, not necessarily Judge Amchan’s) is interesting to see in the context of the non-government employer-employee relationship.

***Update on 4-26-12*** The excellent Minnesota Employer blog, written by attorneys from the Minneapolis law firm Briggs and Morgan, has some additional – not necessarily objective – commentary on the case, and kindly included a link to the decision. Go educate yourself.

Rave on….

New Felony

19 Apr

Governor Dayton Signed a new Felony statute into law yesterday making neglect of a vulnerable adult which causes substantial bodily harm a felony. Greatly expands possible criminal liability for caring for the elderly.

Media Senser-ship

19 Apr

As a criminal defense attorney, I will be the first to express anxiety at the media covering any motions in one of my cases.  This is particularly true of what are known as motions in limine, AKA motions at the outset of trial, AKA stuff you don’t want the jury to hear about. There seems to be a general impression that any motion to limit what the jury hears is an attempt to hide the truth.  That has been the general tone of recent Amy Senser coverage.

There are two concerns that such coverage raises: First, corruption of the jury pool; Second,  mischaracterization of nuanced legal concepts by non-lawyer reporters. Let’s take for example the MPR lede:

MINNEAPOLIS — A Hennepin County judge has ruled that some questions about Amy Senser’s alcohol use may be raised during trial.

Judge Daniel Mabley ruled that while prosecutors will not be able to ask witnesses about Senser’s general alcohol use, they will be able to offer evidence of alcohol use by Senser on the night of Aug. 23, 2011. That’s when prosecutors say Senser drove her Mercedes-Benz SUV into a man who was fueling his car on the side of a freeway ramp, killing him.

 A passing knowledge of the rules of evidence would tell you that the general drunkenness evidence is prohibited because it is propensity evidence–she is usually drunk so she was probably drunk that day.  The evidence that she was drunk that day, however, goes directly to her state of mind as well as motive for failure to report (among other things).  Pretty straight forward stuff.
Now imagine you know you have jury duty next week.  You’ve told your friends, and you are a citizen of average uprightness.  This weekend you are out having a beer with friends, the subject of jury duty comes up.   The juiciness of the Senser story is too much to resist.  You talk about how criminal defense lawyers just try to hide evidence.  Like Senser–what a drunk.  And I bet the jury won’t get to hear anything about what really happened. Suddenly a jury pool is corrupted.  And why? This brings us to the next issue: non-lawyer legal reporters.
Let me first note that even if the defense had not made a written motion, the trial court would very likely have ruled in the same manner.  It might even be reversible error for it not to do so.  So what is the news value of such coverage? I would argue that there is little.  The right to a fair trial is right up there with freedom of the press in the Bill of Rights (notably behind the No Quartering of Troops amendment).  The mere rulings on evidentiary issues does little to inform the public and quite a bit to taint jury pools.
This is not to say that there is not legitimate purpose to report on evidentiary rulings or that such speech shouldn’t be considered protected speech.  However, merely reporting “judge says no drunkenness evidence” does little to advance debate.  If the story was about the weighing of prejudice to the defendant against relevance to the charge then it would be meaningful…and also probably go unread.  And that is why all court coverage will soon be done by Nancy Grace.

Oral Arguments Heard in Suicide Assistance Case

19 Apr

Let’s try this again…

The Minnesota Court of Appeals heard oral arguments today in the case of William Melchert-Dinkel, a former nurse from Faribault, who was previously convicted under Minn. Stat. 609.215 subd. 1, which states that “Whoever intentionally advises, encourages, or assists another in taking the other’s own life may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both.”

Prosecutors say Melchert-Dinkel sought out depressed people in Internet chat rooms and encouraged two of them to kill themselves.

Although I couldn’t find any appellate briefs online, news sources reported that one of the issues on appeal is whether Melchert-Dinkel’s communication with the suicide victims was Constitutionally protected speech.

“You are permitted under the Constitution to have opinions and the right to share them,” defense attorney Terry Watkins reportedly said, according to the AP.

“He went to chat rooms knowing the people there would be predisposed to committing suicide,” prosecutors countered, according to the same AP story. “I think it is categorically outside First Amendment protections.”

The trial court, in Rice County, Minnesota, had previously found these First Amendment arguments unconvincing.

This story has been pretty big news, dating all the way to Melchert-Dinkel’s arrest. You can read more about Melchert-Dinkel on his Wikipedia page, and more about today’s oral arguments on MPR. And for anyone interested, here’s the criminal complaint.

Stay tuned…