Minnesota Senate Election, 2008

In November and December, I was a volunteer lawyer working on the Minnesota Senate Election Recount in Ramsey County. It was a great experience that required very little of me in terms of expertise. I was told at a training session that I was not there to interpret the law or make rulings about the law. I was not there to make decisions of any kind. I was there to lend gravitas to the room – a presence that was watching what the counters were actually doing. A side effect of participating in the recount is that I feel somewhat of an ownership interest in the result. I have been following the court battle and paid attention to the various rulings that were issued.

The final ruling from the three-judge panel was issued on April 13, 2009, and, yes, I read it. I found it to be quite interesting and well done. Whenever I read court rulings, I learn something and this was certainly no exception. Election law is not my area of expertise, so there was a lot to learn in this opinion.

One of the more interesting issues that the court addressed was the broad issue of absentee voting. We have always assumed that voting is a right to be enjoyed by all citizens eligible to vote. That is still true, but the court pointed out that absentee voting is a privilege and not a right. In other words, everyone is still entitled to vote, but the legislature made it easier for some who were unable or simply unwilling to go to the polls themselves. (Personally, I prefer going to the polls and casting the ballot among the hubbub and getting my “I voted” sticker.) The Minnesota Supreme Court noted in 1988 that “Since the privilege of absentee voting is granted by the legislature, the legislature may mandate the conditions and procedures for such voting.”

Viewing the process as a privilege allows the legislature and the courts to place more restrictions on this than on in-person voting. That is, one must meet the threshold requirements for absentee voting, and if one does not, for whatever reason, then that person’s vote should not count. The court stated that the individual voter was personally responsible for ensuring that the requirements were met. In other words, the voter could have appeared personally and made sure all was done correctly, but, for various reasons, did not and therefore casts a ballot that may or may not meet the requirements. If the ballot or the voter does not meet all the requirements, then that vote does not get counted – even if the error was on the part of the election official and not the voter.

The issue of absentee voting is addressed by the court more fully in the context of the equal protection argument raised by the Coleman camp. The court stated, “…neither the Equal Protection clause nor the Supreme Court’s ruling in Bush v Gore compel this court to order the opening and counting of ballots cast by individuals who failed to comply with the basic eligibility requirements codified in Minnesota law.” They effectively dismissed all of Norm’s arguments and lauded Minnesota’s election system, the Secretary of State’s office and the hard-working individuals who conduct the elections as volunteers and paid staffers.

If you would like to read the entire opinion, it can be found on the Minnesota Courts Website under "Minnesota Senate Seat '08 Election."

The freedom to steal act?

Today's Star Tribune had an article with the unfortunate subtitle of The Freedom to Steal Act. Senator Mee Moua, DFL-St. Paul, is proposing that it is time to start talking about a realistic approach to criminal justice. Some, including the reporters for the Strib, seem to think this is funny. They suggest that criminals will adapt to the new legislation and modify their modus operandi such that they will get off with less punishment for the same crime that the current legislation had so far deterred them from committing. Really?! My Criminal Law professor pointed out to a class of lawyer-wannabe's that virtually no one knew the penalty for speeding at more than 15 miles over the speed limit. Everyone in class, however, agreed that they automatically slowed down at the sight of a State Trooper or police vehicle. The point is that those who are planning on violating the law rarely change their behavior by thinking of how much time they will do; rather, they modify their behavior according to the likelihood of being caught. Continuing to ramp up penalties does not deter crime. If it did, wouldn't our prison population be lower instead of growing at an unprecedented rate?

It is time to talk seriously about how we deal with offenders. (See also this article from the New York Times: Albany Reaches Deal to Repeal ’70s Drug Laws) It is also time to start looking at reinstating the Parole Board in Minnesota. It is time to return to the rehabilitation philosophy and turn away from the vengeance mode of the last several decades. We can no longer afford to lose our young people to mandatory sentencing with no plan of what to do with felons released from prison at an arbitrary time with no regard to what they are to do when released. A judge could review the facts of each case before sentencing and impose a fair sentence instead of a mandatory one. A Parole Board could effectively and efficiently review each case upon the petition of the offender. If that offender has reformed, learned a trade, has a support system and likelihood of gainful employment upon release, why not gain a productive tax-paying citizen instead of continuing to pay taxes to keep him locked up for nothing more than vengeance?

MSNBC appreciation of my photography!

The Editors at MSNBC.com have selected this picture I took on Lake Superior's North Shore as an "Editor's Pick" in their First Person display of Fall Foliage. We spent a long October weekend in Grand Marais, MN, and thoroughly enjoyed the colors along the North Shore, particulary at the mouths of the Cascade and Temperance Rivers. Even though these spots are right on Highway 61, they appear to be very insulated from civilization. A truly beautiful part of the state.

MSNBC.com has notified me that they have selected one of my photos as an "Editor's Pick" in the First Person report of "Gorgeous Fall Foliage." This is the one they selected:

Retirement account defined as Income?

I currently have a case in which we are asking the Court to determine whether retirement assets can be defined as "income" under an antenuptial agreement. The agreement states:

“References to the property of a party mean any interest in property, real or personal, which is acquired by the party

4.8.1 Before the marriage or after a decree of legal separation;

4.8.2 By gift, devise or inheritance from a third party to one but not both of the parties;

4.8.3 As earnings or income whether before or after the marriage;

4.8.4 In exchange for or as an increase in the value of any such property.”

In an initial ruling, the Court determined that one party's defined benefit plan was protected under the agreement, but failed to state under which provision. The question is whether a defined benefit plan, without contribution by the party and not available to the party except upon retirement, can be defined as income for purposes of protecting it under the antenuptial agreement. A motion for amended findings has been filed seeking clarification of that issue.

Photography as a Hobby

Click below or on the sidebar to see a sampling of photographs I have taken over the past several years. This has nothing to do with the law, but it does provide me with a break from the office routine. These are best viewed in the "Slide Show" format. Let me know what you think. If you are interested, the photos were taken with a Nikon D80 in RAW format and edited with Photo Shop Elements.

Photography Samples

Non-marital property division

The Minnesota Supreme Court has recently determined that the non-marital character of a party's asset is a function of the actual effort the party (husband or wife or both) put into the asset. In other words, just having effective control over the asset, such as an investment account, by hiring a money manager, does not render the account marital. It is, rather, the amount of time and effort the party actually and personally puts into the management of the account. In the Baker v Baker case, the court was asked to decide if an investment account and the appreciation in value was marital. The Court said, "the single test for whether appreciation in value of nonmarital property is marital or nonmarital is the extent to which marital effort—the financial or nonfinancial efforts of one or both spouses during the marriage—generated the increase." Simply having control over the account with no or minimal personal involvement with the funds was not enough. The court held that if appellant’s minimal actions constituted "active management," there is essentially no way to "passively" maintain nonmarital funds.