Sunday, March 31, 2013
When Denise Dallaire was arrested at age 26 on charges of selling a few ounces of crack cocaine here a decade ago, she was sentenced to prison for more than 15 years. Last month, shackled inside the same court and facing the same judge, she received an apology and was set free.That's a wonderful thing. At least for Denies Dallaire. The Times calls the events that led to an apology and release "an exquisitely rare constellation" of events, and indeed, it was.
Ms. Dallaire was lucky enough to get herself noticed and for a technical flaw in her case to have surfaced. The result was a moment of courtroom drama and human redemption led by an 81-year-old judge eager to make amends for a decision he had long regretted.
“I felt bound by those mandatory guidelines and I hated them,” Judge Lagueux (pronounced la-GUEUR) said from the bench as Ms. Dallaire sobbed quietly and the room froze with amazement. “I’m sorry I sent you away for 15 years.
Judge Gleeson then called a friend, Jonathan D. Polkes, at Weil Gotshal to take on Ms. Dallaire's case pro bono. When a judge asks you to do a case pro bono, you do it. Had Ms. Dallaire written the same lawyer with the same request, would anyone have even read her letter? Polkes did the only thing available, request a presidential pardon, which had slightly less chance of working than someone winning the megalball jackpot weekly for the next four years. President Obama has been particularly stingy when it comes to pardons.
As part of the pardon process, Mr. Polkes sent the materials to Judge Lagueux to get his signoff. The judge was eager to help. He believed, however, as did the others, that a presidential pardon was unlikely. But he noted a procedural flaw in his original sentence. He told Mr. Polkes that if he could get the case back before him, he would free Ms. Dallaire on time served.
The article doesn't say what the "procedural flaw" was, but it would be fair to guess that only a judge truly inclined to resentence would point it out and embrace it. Judges do not usually find such flaws sufficiently persuasive to tell a lawyer that he wants the case back before him.
Cutting to the chase, since there details are so lacking as to provide no insight as to the mechanics of getting Denise Dallaire back before Judge Lagueux, we arrive at the magical moment in the courtroom where the judge apologies for his original sentence and frees the now not-so-young woman before him.
Heart-warming? For some. For me, not so much. What this story reflects is one defendant saved from the belly of the beast, but it simultaneously reflects the fact the all the others, the tens of thousands for whom the "exquisitely rare constellation" of events didn't occur remain in federal prison, and will spend the vast majority of their lives, if not the balance, waiting for the day that a judge like John Gleeson stumbles upon them.
There aren't too many judges like John Gleeson. There aren't too many judges like Ronald Lagueux. There isn't nearly enough good luck to go around. The legitimacy of a system cannot depend on fortuitous events, one at a time, righting the wrongs of a system out of control.
Not to lack empathy toward Ms. Dallaire, but to remember that she's just one of so many who have been sentenced to a future of pointless misery because it made for good politics at the time, and to highlight that there aren't enough judges like John Gleeson and Ronald Lagueux to go around, this story of one success is a tale of a failed system. One win is good, but what of everyone else?
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Saturday, March 30, 2013
Four candidates were recommended to Governor Mark Dayton for consideration to fill the vacancy in Minnesota’s 9th Judicial District. This vacancy was created upon the appointment of the Judge John P. Smith to the Minnesota Court of Appeals. This seat will be chambered at Walker in Cass County within the Ninth Judicial District.
Jana Austad: Austad is the Managing Attorney in the Brainerd Regional Office of the Minnesota Public Defender, where, in addition to her caseload, she manages the assistant public defenders in Aitkin, Cass, and Crow Wing Counties. Previously, she was an attorney at Kief, Fuller, Baer and Wallner, Ltd., practicing general litigation with a concentration in workers’ compensation, township law, and family law. Austad is an active volunteer with the Sharing Break Soup Kitchen and the Lord of Life Lutheran Church.
Eric Schieferdecker: Mr. Schieferdecker is an Assistant Attorney General for the State of Minnesota, and primarily prosecutes murder, drug, sexual predator civil commitment, and implied consent cases in the Ninth and Seventh Judicial Districts. Previously, he was the Chief Assistant County Attorney in Beltrami County. Schieferdecker is a Students First Mentor at Bemidji Middle School and a board member and vice chair of the Sexual Assault Program of Beltrami, Cass, and Hubbard Counties.
Christopher Strandlie: Strandlie is the Cass County Attorney, where he serves as the chief prosecutor for the county and legal advisor for all county departments. Prior to the County Attorney’s Office, Mr. Strandlie was a partner at Kimball and Strandlie Law Office, handling real estate, family law, probate, and criminal defense cases. Additionally, Mr. Strandlie is a 17-year veteran and president of the Walker Volunteer Fire Department and vice-president of the Walker Area Youth Hockey Association.
Judge Korey Wahwassuck: 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 and a solo practitioner in Missouri and Kansas. Additionally, Judge Wahwassuck served as an adjunct instructor at the Leech Lake Tribal College and helped found and presides over the Leech Lake-Cass County-Itasca County Welness Courts, the first joint tribal-state jurisdiction courts in the nation.
Minnesota’s Ninth Judicial District consists of Aitkin, Beltrami, Cass, Clearwater, Crow Wing, Hubbard, Itasca, Kittson, Koochiching, Lake of the Woods, Mahnomen, Marshall, Norman, Pennington, Polk, Red Lake, and Roseau Counties.
An announcement of the appointment will be made following an interview process over the next few weeks.
Not only did this young woman visit her husband in the Penitentiary, but she also brought their infant son, and ... a gift! The folks at The Lincoln Journal Star reported it this way:
A state prison inmate's wife faces a charge herself after allegedly getting caught trying to deliver marijuana during a visit in January. Lakeisha Davis, 20, of Omaha is accused of delivery of marijuana, which carries a one- to 20-year sentence if she's convicted.
In an affidavit for Davis' arrest, Nebraska Department of Correctional Services Officer Benny Noordhoek said Penitentiary staff confiscated a small package of marijuana from Michael Benson during a visit Jan. 13 with his wife and infant son.It would appear that they may have gotten away with it, but ...
About 20 minutes after the visit started, he said, staff became suspicious of how Benson and Davis were behaving.
A check of video surveillance showed Davis putting something in Benson's pants pocket, Noordhoek said. He said prison staff took Benson to a strip search room, where Benson threw a bag of marijuana to the floor.Fortunately for their infant son ...
Davis was allowed to leave that day. Earlier this month, a warrant went out for her arrest.Whatever you think about weed, it's still illegal in most states. This was just plain idiotic, even more so for a presently single mom. Here's the source.
The three finalists to replace the retiring Justice Paul Anderson on the Minnesota Supreme Court were announced.
Judge Edward J. Cleary sits on the Minnesota Court of Appeals as judge for the Fourth Congressional District. He previously served as judge and Assistant Chief Judge for the Second Judicial District. From 1997-2002, Cleary served as the Director of the Office of Lawyers Professional Responsibility. Prior to that, he practiced law for 20 years, concentrating on criminal defense and civil litigation. He is a past president of the Ramsey County Bar Association and served on the Minnesota State Bar Association Governing Council. In addition, Cleary served as an adjunct professor at the University of Minnesota Law School from 2000-2012.
Judge Natalie E. Hudson sits on the Minnesota Court of Appeals as an at large judge. Prior to her appointment to the Minnesota Court of Appeals, she served as an Assistant Attorney General for the State of Minnesota in the Criminal Appeals and Health Licensing Divisions. Hudson has also served as the City Attorney for the City of St. Paul, and was the Assistant Dean of Student Affairs at the Hamline University School of Law. She is a member of the American Bar Association’s Judicial Division and is a member of the Minnesota Women Lawyers Advisory Board.
David L. Lillehaug is a former United States Attorney for Minnesota. Lillehaug is an officer and shareholder with Fredrikson & Byron. His litigation practice focuses on public law and complex cases – civil, criminal, and administrative – with a particular emphasis on state and federal constitutional issues. He serves on three non-profit boards and on the Minnesota State Bar Association’s Mock Trial Program Advisory Committee.
Anderson is set to retire in May. No word on when his replacement will be named.
Friday, March 29, 2013
Noel Canning v. NLRB (DC Cir 01/25/2013)
The DC Circuit this morning held that the President's attempt to make "recess" appointments of three NLRB Members was invalid under the constitution.
On February 8, 2012 the Board issued its decision finding that the employer violated the NLRA by refusing to reduce to writing and execute a collective bargaining agreement reached with Teamsters Local 760. At that time the Board purportedly had five members. Two of these had been confirmed by the Senate. Three of these were appointed on January 4, 2012, purportedly pursuant to the constitution's recess clause.
At the time of the President’s purported recess appointments, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. The DC Circuit held that "recess" appointments must occur during an "intersession" recess of the Senate, that is to say, the period between sessions of the Senate when the Senate is by definition not in session and therefore unavailable to receive and act upon nominations from the President.
Because the appointments were invalid, the Board lacked a quorum (three Members) and its order was "void."
Lots of chatter from all over:
- New York Times
- Wall Street Journal
- Workplace Prof Blog
- New York Labor and Employment Law Report
- Faculty Lounge
- Jottings by an Employer's Lawyer
- Employment Law Watch
Thursday, March 28, 2013
A view of the U.S. Supreme Court during a week of potentially decisive hearings for same-sex marriage.
Mary Ellen DiDomenico, from Bucks County, Penn., referring to Matthew 19:4-5 for why she opposes same-sex marriage. . . . .
More videos on the jump.
Wednesday, March 27, 2013
The NLRB this week made public a number of significant decisions, most reached in the final days of the term of Member Brian Hayes, which ended on December 16. The Board continues with three members, Chairman Mark Gaston Pearce and Members Richard F. Griffin, Jr. and Sharon Block.
The decisions touch on a variety of issues including social media postings, charter school jurisdiction, backpay awards, the chargeability of certain union lobbying expenses, and an employer’s responsibility to continue dues collection after the expiration of a contract.
Hispanics United of Buffalo
The Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.
Alan Ritchey, Inc.
In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.
In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.
Chicago Mathematics & Science Academy
Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.
United Nurses & Allied Professionals (Kent Hospital)
The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.
WKYC-TV, Gannet Co.
Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.