Our condolences to the family and friends of Judge Gerald Heaney, who died yesterday at the age of 92. A Star Tribune article about him is available here.


Chief Judge Robert Benson of the 3rd District announced today at the MSBA convention in Rochester that the judges this morning agreed to call for the taking of voluntary unpaid leave by court personnel as a cost-reducing measure.

“These are sad times,” he told attendees.

The district also plans to continue its reduced use of law clerks, and for the foreseeable feature plans to stay below a 1:1 ratio for judges and clerks.

With a daunting deficit facing the state for future budget years, Benson said he fears what effect it will have on the administration of justice in the already resource-strapped district.

“We expect judges to put in 50 plus hours a week,” Benson said.

Justice Paul Anderson spoke to the MSBA Day in Willmar last week about the future of the Supreme Court in (this is getting as hard to write as it is to read) the new austerity. “The next biennium will be brutal,” Anderson predicted. Justice-designate David Stras will have his work cut out for him, joining a new court, Anderson said. “He’s got the same problem as [former Judge] Jack Davies and [Judge] David Minge. Policy, policy—that’s not what we do here,” he said. (Minge is a former congressman and Davies a former legislator.) But Anderson also made it clear that he was kidding, and that he had the utmost respect for Stras, Minge, and Davies.  “You’re one of our best,” he told Minge, who was attending the convention.

Anderson pointed to some important cases from the last year, and one maybe not so important to many lawyers but notable to Anderson because, as he pointed out, in State v. Peck, he taught everyone how to use a bong. Lawyers should pay attention to cases involving mechanic’s liens because they illustrate that “George Bailey [from the movie It’s a Wonderful Life] isn’t sitting in the corner of the bank anymore.” And forfeiture cases are important to the counties because of the funds they generate, he said. “Maybe that money should go into the general fund.”

And, Anderson pointed to State v. Stein, decided last January, as an important case to watch in assessing the new court. In Stein, the court in a plurality opinion affirmed a conviction based on circumstantial evidence, in what Anderson called a “nuanced change” in the law. In his concurrence, Anderson wrote that the plurality opinion had developed a new standard for circumstantial evidence that effectively denied meaningful appellate review. “ The plurality opinion unduly narrows our traditional standard of review for circumstantial evidence by replacing the term ‘circumstantial evidence’ with ‘circumstances proved’ and then restricting review of ’circumstances proved’ to only those circumstances deemed by the court to be implicit in the guilty verdict. But ‘circumstances proved’ is broader than this; it includes an examination of more than what we may deem to be implied in the jury’s guilty verdict,” Anderson wrote, joined by Justices Helen Meyer and Alan Page.

At the MSBA convention in Rochester, Justice Paul Anderson had a plethora of literary allusions in his presentation on recent high court cases. He waxed particularly poetic in citing to the now infamous Bong water case, citing both Mark Twain (on the need for a discriminating irreverence) and Bismarck’s comparison of law making to sausage making.

Anderson, who dissented in the bong case, wryly noted that When Gov. Tim Pawlenty was on “The Daily Show,” Jon Stewart quizzed the presidential hopeful — who would just assume talk about national issues — for a substantial amount of time about the bong water case and his decision to veto legislation that would overturn the result.

One could say that Stewart was demonstrating a discriminating irreverence, Anderson said.

Anderson used a glass of water to show how small the sample of drugs was in the bong case. Because the water weight was counted, the presumptive sentence for the tiny amount of actual drugs was 84 months, he pointed out.

Noting the case happened in Rice County, he told the Rochester attendees to keep their kids away from bongs.

This just in from the Department of Circular Logic: The U.S. Supreme Court rules that arbitrators, not the courts, get to decide whether enforcement of a mandatory arbitration agreement is unconscionable.

If an arbitrator decides that an arbitration clause is not enforceable, doesn’t that mean the arbitrator didn’t have the authority to make that decision in the first place? And doesn’t an arbitrator, who only gets paid if a case, you know, arbitrate, have a built in financial incentive to uphold an arbitration clause?   

The American Association for Justice — the nation’s largest trial lawyers’ group — immediately sent out a press release slamming the U.S. high court’s ruling in Jackson v. Rent-a-Center.

“Corporations now have nearly unchecked authority to write, enforce and judge the fairness of their own forced arbitration clauses. The fox is guarding the hen house – at the expense of citizens’ access to the civil justice system,” said Anthony Tarricone, the AAJ president.

No need to tell us here in Minnesota. Anybody remember the National Arbitration Forum’s decision to get out of the consumer-debt arbitration business after a lawsuit by the Minnesota Attorney General’s Office?

Former Chief Appellate Public Defender Larry Hammerling died over the weekend after a two-year struggle with brain cancer, the state public defender’s office told Minnesota Lawyer in an e-mail today. Hammerling was the chief of the appellate office for many years and an inspiration and mentor to many. He worked very hard on funding issues for his office and, hence, for his clients. I’ve known him since I was in law school. He was a nice, smart, kind man and an outstanding lawyer and he will be missed.

Mayo Clinic in Rochester

 As loyal readers of our blog will know (as, I suppose, will disloyal readers as well), I was in Mankato for a day last week for the MSBA’s new “on the road” formatted convention. Tomorrow I land in lovely Rochester, home of the Mayo Clinic. 

Mayo has been good to Olmsted County, and the county has returned the favor, as Minnesota Lawyer detailed in an article last February, “Mayo’s healthy home court advantage.” (Password required.)  In that article, we learned that taking on Mayo in Olmsted County is akin to taking on the Yankees in Yankee Stadium. Here’s one interesting tidbit from the article. 

According to spokesperson Bryan Anderson, over the last 20 years, the clinic has lost only one trial in Olmsted County and only one trial in federal court. 

Can the Mayo doctors be that good? Well, no, but … 1. the best cases settle; 2. med-mal cases typically end in defense verdicts; and 3. there is no three, but I thought it looked better than a list of two.  

In any event, as I head down to Rochester tomorrow, I will have Mayo’s daunting record of success on my mind. One wonders how a plaintiffs’ med-mal lawyer makes a living in that town.