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| Frustrations with the Law Like most
lawyers, I really enjoy the law. In
my work as an advocate I cannot imagine a better job.
This job, on the other hand, has its troubling moments.
That occasion when a judge disagrees with me is one of those
moments. More so, however are
those moments and minutes and hours and days when I see what I feel
are troubling inconsistencies in the law right here in my fine state
of MANIFEST HARDSHIPS This past February I picked up the newspaper
and read a front-page headline, “Court Rejects Fees for Defense.”
The article described how the Minnesota Supreme Court had rejected
$50 to $200 public defender fees for defendants seeking a free legal
defense. The Court called such
a fee “manifest hardship.” State v. Tennin, 674 N.W.2d 403, 410 ( As I read that article, I couldn’t believe
what was reading. I had to
pull the decision. My disbelief
was not with the decision itself, for I can recall some law school
discussion of Gideon v. Wainwright, 372 U.S.335, and
its well-reasoned conclusions. Rather,
I couldn’t believe the contrast between this decision and a previous
one. Just a few months earlier I read the Minnesota
Supreme Court held that an unemployed dui defendant had to forfeit
a $16,000 vehicle because of two DWI convictions.
How is it that a “manifest hardship” exists for one defendant
to pay a nominal fee for a public defender but it’s acceptable to
seize one’s $16,000 vehicle because of two DWIs?
I don’t get it. Miller v. One 2001 When was the last time you heard of a DWI
defendant being fined $16,000? You
didn’t because it doesn’t happen.
Yet somehow the Court in the Miller
case said that a $16,000 forfeiture is akin
to a fine and a reasonable penalty.
The $16,000 seizure is a reasonable penalty for a DWI?
I don’t think so. These civil forfeiture cases always dumbfounded
me but seeing these two decisions coming out of the same court really
perplexed me. Talk about a
manifest hardship. Get a DWI
and lose your vehicle because it’s called a forfeiture
and not a fine. “Baloney,”
my dad would say. “It’s
hocus pocus, smoke and mirrors, and irreconcilable injustice.” But if you break the law and are asked to pay
a $50 fee for a free public defender, it’s a “manifest hardship.” I’ll move on. BIAS IN THE TRIBUNAL Imagine this scenario. You own a business and are told by the city
you have to move because the city bought the building you occupy and
it’s scheduled for demolition to make way for a park. You do a little research and find out people
and businesses who are forced to move by the government are supposed
to get relocation benefits. You
ask the city about these benefits and they tell you to go away because
you’re ineligible for relocation benefits.
Being the persistent type, you hire an attorney.
The attorney tells you the determination of eligibility for
benefits must be made by a fair and unbiased tribunal and, by the
way, the benefits you seek could be substantial and in excess of $20,000. When your attorney requests a hearing, the
city says no problem; we’ll give you an opportunity to make your case
before the City Council. You
exclaim, “That’s not fair!” Your
lawyer agrees. How can the
same City Council that appoints the staff that tells you you’re not
eligible for relocation benefits be fair and impartial?
How can the same City Council that sets the city budget and
is responsible for payment of my claims be fair?
How can the same City Council that voted for the project that
forced me to move be fair? You tell your lawyer this is a Kangaroo Court
and you want a fair hearing. I
want justice, you demand. Relocations, your lawyer tells you, are
governed by administrative rules.
She cites case law that says an administrative appeal hearing
is in order and that, as in a district court matter, you are entitled
to a fair and impartial hearing. She even tells you that our system of justice
says a judge has to recuse himself
or herself if a potential conflict of interest exists. You demand justice and before long you’ve made
it before the Minnesota Court of Appeals.
There your lawyer argues the law, how our system of justice
demands fairness and impartiality, and how no reasonable person could
believe this City Council will be fair.
You lose and the court tells you why.
You didn’t prove the City Council wouldn’t be fair.
Again, I don’t buy it. See
Chanhassen Chiropractic v. City of It’s a perplexing task to tell a client
that if they bring suit in district court, or conciliation court for
that matter, the judge who has a conflict or bias regarding the case
must step aside voluntarily; but in this matter, involving a significant
amount of money, you must prove the tribunal is biased to get the
same kind of justice. If we applied this same standard to the district
court, judges could freely take cases where they had bias or conflicts. If you want a judge removed, prove it. It’s a good thing we’ve evolved to the point
we have in district court where judges recuse
themselves when they have a bias and where, as a matter of right,
a party can remove a judge. The Chanhassen
Chiropractic decision does not spell doom for all those displaced
by government for one good reason: many government attorneys know
what bias looks like and advise their clients to establish fair administrative
tribunals. Some appointed and elected officials know fairness
when they see it and know it is part of that constitution they are
sworn to uphold. In fact, if
you’re forced to move by MNDOT and some units of government, you get
a hearing before an unbiased and disinterested administrative law
judge (ALJ). But in other circumstances, the only process
you are due is the right to complain before the same body that forced
you to move. This is no more
just than the government seizing your $16,000 vehicle for a DWI but
it’s the law in STILL A GOOD JOB One more while I’m at
it. Why is it that the police can lie and trick
suspects into self-incrimination, but when Martha Stewart lies to
the government, she gets convicted of a felony?
I don’t get this one either.
But maybe that’s the nature of the law.
My writings here about ridiculous punishment and undue process
are maybe just the way it is. It’s
a shame and maybe a reality of our system — a system we can work to
change. Maybe it’s that quest for positive change that
keeps us focused. Maybe that
quest for positive change is what makes this line of work the good
job that it is. |
