For Immediate Release: June 26, 2009
(Minneapolis) – The Minnesota Lavender Bar Association (MLBA), an organization of attorneys, law students, and other legal professionals working to assure that Minnesota is a community where legal professionals can thrive regardless of sexual orientation, gender identity, or HIV status, praised today’s action by the Minnesota State Bar Association (MSBA) issuing an executive summary of a report that identifies dozens of potential changes in Minnesota law to help same-sex couples. The suggested changes, which will now be referred to appropriate MSBA sections and committees for formal endorsement and further action, would affect areas including family, probate, tax, employment, and other aspects of the law.

“This report builds on previous efforts to identify legal barriers same-sex couples face, by highlighting priority areas for change,” said David E. Ahlvers, MLBA Board of Directors and Co-Chair of MSBA’s Task Force on the Rights of Unmarried Couples. “It’s a significant roadmap to one approach for statutory reform in the coming years.”

The report from the MSBA’s Task Force on the Rights of Unmarried Couples is premised on the assessment that the Minnesota legislature will not approve marriage or civil unions for same-sex couples in the short term. The report outlines many areas where discrete reforms could be accomplished which would benefit these couples and their families in the meantime. But, according to language the MSBA affirmatively approved today, “The changes proposed … will not effectuate comprehensive equality for unmarried couples, and should not be seen as a sufficient alternative to a comprehensive solution.” Rather, they are short-term improvements the State should consider “while moving toward a viable long-term solution to the problem of wholesale exclusion of same-sex couples from the protection of our legal system.”

Today’s action brings the MSBA closer than ever to endorsing the concept of marriage equality: “The deprivation of access to marriage these couples experience works real harm. … This absolute exclusion fosters a state approved, second class citizenship, and casts same-sex couples into a legal void,” today’s approved language states. “[T]he impact of the disparate treatment is far reaching and detrimental to couples who are not afforded the opportunity to seek the legal protections and obligations of marriage … .”

“The MSBA is clearly moving in the right direction on GLBT issues, including relationship recognition,” says MLBA co-chair Melissa Houghtaling. “We salute the MSBA’s progress, while recommitting ourselves to our years-long work of continuing and expanding the dialog in the legal community about issues our community faces.”

MLBA is a recognized affiliate of the MSBA and of the National LGBT Bar Association.
Click here to read the complete report or click here to read the Executive Summary

[reprinted with permission from Minnesota Lawyer – www.minnlawyer.com]
By Michelle Lore Associate Editor

A proposal to place new restrictions on the use of peremptory challenges is causing a stir in the state’s legal community.

A peremptory strike is a way to exclude a potential juror without giving a valid reason. The proposed amendment would expand the prohibition on exercising peremptory challenges based on race or gender to 10 additional protected categories, including religion, age and sexual orientation.

The proposal originated with the Minnesota State Bar Association’s Diversity Committee but has made its way through several other groups that have also given it their stamp of approval.

Diversity Committee member Phil Duran said that discussions of the proposal have sparked suggestions ranging from expanding the rule as suggested to expanding it to only a few additional protected classes to scrapping the peremptory challenge rule altogether.

“It’s been a fascinating experience to see the range of opinions that have come forward as a result of putting this idea out there,” he said.

Consistent rules

Supporters of the amendment contend that it simply makes the Minnesota Rules of Criminal Procedure more consistent.

Rule 1.02 states that criminal proceedings are to be conducted without the purpose or effect of discrimination based on race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, disability, handicap in communication, sexual orientation or age.

Rule 26.02, subd. 6a(1), states that a party may not engage in “purposeful discrimination on the basis of race or gender in the exercise of peremptory challenges.” (Parties that believe the rule has been violated may challenge the strike under the 1986 U.S. Supreme Court decision in Batson v. Kentucky, where the court determined that a prosecutor may not use a peremptory challenge to exclude jurors based solely on their race.)

The proposal seeks to conform the two rules by expanding the reach of the prohibition on the use of peremptory challenges to all 12 of the protected categories listed in Rule 1.02.

Melissa Houghtaling, co-chair of the Minnesota Lavender Bar Association, said that the amendment doesn’t make a major change to rules.

“There already exists an overarching nondiscrimination policy within the rules of criminal procedure,” she said.

Houghtaling added that people should not be barred from serving on a jury simply because of their actual or perceived sexual orientation. She noted that prosecutors and defense attorneys could be eliminating people who are more than qualified to serve.

“A lot of times people make assumptions based on the way people present and it may be completely inaccurate,” she said. “We don’t believe people should be discriminated against based on any sort of identity.”

Bloomington attorney Danielle Shelton, chair of the MSBA Diversity Committee, said that the rule change furthers the group’s mission of eradicating all types of discrimination.

“Our goal is to make sure that everybody … gets a fair shake in the judicial system and within the legal community,” she said. “We thought [this amendment] was a natural extension of what’s already at the very beginning of the rules of criminal procedure.”

Differing views

But some in the legal community are skeptical of the proposal.

Hennepin County District Court Judge Lloyd Zimmerman, a member of the MSBA Human Rights Committee, said that in practice, expanding the rule would ensure that factors that should not be used to pick jurors aren’t used. Nonetheless, the proposal is bound to be controversial, he said.

“It’s hard to argue with its salutary purposes, but it would make the protection so broad … that it might have the indirect effect of either eliminating [peremptory challenges] or making them less useful,” said Zimmerman. “That’s where the debate was going in some of the meetings I was in.”

Zimmerman explained that if lawyers have to justify why they are using a peremptory strike against a potential juror who belongs to one of the protected groups, then it’s really no longer a peremptory.

“In a way, you hamstring the lawyers for both sides in all kinds of case,” he said.

McLeod County Attorney Michael Junge, a member of the Supreme Court’s advisory committee that would need to examine the issue, said that while the concept is laudable, implementation may be difficult. For example, he questioned, would all jurors have to disclose a sexual orientation to the court so that the court could ensure that no discrimination took place?

“Prior to taking any position I would like to see a proposal as to how the court would implement this protection,” said Junge.

Minneapolis attorney Robert Sicoli, president of the Minnesota Criminal Defense Lawyers Association, said that while the organization has not taken a position on the proposal, he’s discussed it with a few other members and they don’t think it’s necessary.

“My feeling is that there isn’t really a problem with discrimination based upon these other factors in jury selection, so I don’t see any reason to expand it,” he said. “It might happen, but I don’t think it’s widespread.”

Sicoli added that some of the protected categories identified might be a legitimate basis, in certain circumstances, to exclude jurors. “It might actually lead to more problems as opposed to solving problems,” he said.

But Minneapolis criminal defense attorney Kyle White is in favor of the amendment, in part because of an experience in federal court several years ago when representing a gay man accused of conspiring to sell drugs. White became convinced that the prosecutor used a peremptory strike to dismiss a potential juror because of his homosexuality, which had become obvious during voir dire.

While there is nothing in the federal rules that specifically prohibits dismissal of a juror on the basis of sexual orientation, White nonetheless challenged the use of the peremptory strike. His challenge was overruled by the judge, however, who determined the government had offered a legitimate reason for the strike. The 8th Circuit affirmed the ruling and noted that it also had “serious doubts” that Batson extends federal constitutional protection to a potential juror’s sexual orientation.

White is hopeful that the criminal defense bar will support the amendment, especially since he believes it increases due process and expands protection for protected classes.

“I would hope they would come to the forefront and advocate for those groups,” he said.

The chair of the MSBA Criminal Law Section, Richard Ohlenberg, said that because members have not had an opportunity to discuss the proposal they are not taking a position either for or against it at this time.

More talk before action

Those who’ve looked at the proposal do agree on one thing — additional conversation on the topic is needed.

Zimmerman said that because the ramifications of the proposal are so broad and so significant, more members of the legal community need to be involved in the talks.

“The proposal has gotten the discussion going, but it would require a great deal of input from all sectors of the bar and the courts,” he said.

In fact, Duran invites broader discussion and debate on the topic of peremptory challenges in general and whether change is necessary.

“It’s clear that there is a broad range of opinion about this, although I’d say there is substantial agreement that some change is merited,” he said.

Sidebar:
Peremptory challenges currently cannot be exercised on the basis of race or gender. Under the proposal, the restrictions would be expanded to include the following 10 additional categories:
• color
• creed
• religion
• national origin
• marital status
• status with regard to public
• disability
• handicap in communication
• sexual orientation
• age

The bar groups that have signed on to the proposal to amend the criminal rule relating to the use of peremptory challenges include:
• The MSBA Diversity Committee
• The MSBA Human Rights Committee
• The MSBA Legal Assistance to the Disadvantaged Committee
• The MSBA Life and the Law Committee
• The Minnesota Lavender Bar

MLBA has not taken a position on either statement, but shares them for informational purposes only. Comments? Email: info@mnlavbar.org. Posting these statements does not constitute legal advice.

The Minnesota Board on Continuing Legal Education has approved five standard credits for MLBA’s Regional Lavender Law conference, held at William Mitchell on Saturday, January 26, 2008. To report your attendance, please visit the website at www.mbcle.state.mn.us; the event code is 116342.

Over 100 people attended the event – far in excess of the number of registrants! Attendees good-naturedly put up with the need to wheel in extra tables and chairs – which is a good problem to have. Students from every one of Minnesota’s law schools took part. Several attendees commented that it was the best Regional Lavender Law that MLBA has put on over the years. MLBA hopes that those in attendance enjoyed themselves, had the opportunity to meet colleagues, and learned valuable information.

MLBA well-represented at attorneys’ demonstration in support of Pakistani lawyers, rule of law

Despite strong wind and a little snow, dozens of attorneys stood on the steps of the Minnesota Judicial Center on November 14 in a show of support for our lawyer colleagues in Pakistan, who have been leading protests against the suspension of that country’s constitution and assaults on its judicial system. This event, organized by the Minnesota State Bar Association in conjunction with similar events nationwide, featured a number of speakers, including MLBA co-chair Kelly Just Olmstead (see photo). Among other things, Kelly reminded participants that “It is our special obligation as lawyers – our burden, our privilege – to stand up for the rule of law. We are specially situated, by virtue of our status, knowledge, and most especially our access to the legal system, to educate our friends, neighbors, and leaders about the value and necessity of maintaining the rule of law.”

On Thursday, March 8, Minnesota's Attorney General, Lori Swanson, addressed some 75 lawyers and law students attending MLBA's annual meeting, held at the Hamline University School of Law in St. Paul (which also generously co-sponsored the event and provided terrific refreshments). Attorney General Swanson outlined various areas of concern at her office, and in particular discussed involvement in hate crimes and school safety issues of interest to Minnesota's GLBT community. It was Attorney General Swanson's first appearance at a law school following her election, and the first time an attorney general addressed the MLBA. The MLBA is grateful for her comments and the active participation of many new and prospective members that evening!

Maple Grove Student Group Victorious at the 8th Circuit

Last year, Maple Grove High School's SAGE (Straights and Gays for Equality) group filed an Equal Access Act suit against the school and district to combat the group's differential treatment.  The 8th Circuit recently upheld Judge Joan Ericksen's preliminary injunction requiring the school to grant SAGE equal access for meetings, avenues of communication, and other rights afforded to other student groups.  The case is trial-ready with no trial date set.  The opinion in Sage v. Osseo Area Schools is available at : http://www.ca8.uscourts.gov/opinions/opinions.html.
Congratulations and thanks to the attorneys at the ACLU of Minnesota and Robins, Kaplan, Miller & Ciresi L.L.P. for their effective advocacy!

At its quarterly meeting on September 15, the Minnesota State Bar Association Assembly, the organization’s governing body, approved a report by the Diversity Task Force that assembled an array of statistics and personal observations relating to the state of “diversity issues” within the Minnesota legal profession. MLBA was instrumental in assuring that issues relating to sexual orientation and gender identity were included within the scope of this effort, for the first time in MSBA history.

Beginning in 2005, the MSBA began an extensive study of “diversity” issues within the Minnesota legal profession, and for the first time in MSBA history, the scope of this effort included studying matters related to sexual orientation and gender identity. MLBA has been involved in the discussions and implementation of this study from the outset, and is looking forward to the final report of results to be issued in September. MLBA helped organize a GLBT-oriented focus group and promoted the individual attorney survey to members and friends of the organization (there was also a survey of legal employers). Many thanks to those who participated! Initial indications are that the results will be eye-opening for GLBT attorneys. Once the report is publicly available, we will post a link. As of this writing, it is hoped the MSBA Assembly will vote to approve the report on September 15.

The Minnesota Supreme Court's May 3, 2005 order amending the Code of Judicial Conduct prohibiting judges' memberships in discriminatory organizations drew praise from the Minnesota Lavender Bar Association, which has been working for the change since late 2000.

"The amendment to Canon 2C of the Code of Judicial Conduct is, frankly, highly symbolic," says MLBA Co-Chair Phil Duran, "but the change is nonetheless an important statement by the Court that all forms of unlawful discrimination have the potential to bring disrepute upon the judiciary by calling into question its impartiality."

Canon 2 of the Code of Judicial Conduct directs that "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." Prior to the change, Canon 2C stated that "a judge shall not hold membership in any organization that practices unlawful discrimination on the basis of race, sex, religion, or national origin."

"What made Canon 2C unusual was that other portions of the Code had long since been revised to address various other forms of discrimination, including that on based on sexual orientation, disability, age, and socioeconomic status," explains MLBA Co-Chair Celeste Culberth. "There was no obvious reason why some forms of discrimination would be seen as triggering 'impropriety' concerns, while others would not, particularly when all are addressed within the Minnesota Human Rights Act."

In September, 2004, the Minnesota State Bar Association’s Governance Committee finalized approval of the Minnesota Lavender Bar Association’s request for a seat in the newly-created MSBA Assembly. The Assembly was created in June as part of a restructuring of the MSBA. MLBA will have one member in this transitional year, and, with other minority bar associations, two members in the Assembly beginning July, 2005. In addition, the minority bar associations together will select two members of the 15-person Council, the MSBA’s new executive body. MLBA is already a member of the Hennepin County Bar Association Board of Directors, and as of July, 2004, of the Ramsey County Bar Association Board of Directors.

In June, 2004, the Minnesota State Bar Association joined the HCBA and RCBA in endorsing a resolution opposing a suggested amendment to the Minnesota constitution that would bar marriage and any other form of legal recognition for same-sex couples. The American Bar Association had endorsed a resolution opposing the now-defeated Federal Marriage Amendment, as had HCBA and RCBA; MSBA was not asked to take a position on the federal proposal. The General Assembly vote at the annual convention in Duluth overcame unusual opposition arguments that if MSBA took a position, it would deprive Minnesotans of their right to amend the constitution.

Between September 30 and October 2, hundreds of attorneys, law students, employers, vendors, and others gathered in Minneapolis for the annual Lavender Law conference sponsored by the National Lesbian & Gay Law Foundation. MLBA, an affiliate of the National Lesbian & Gay Law Association, had bid for the opportunity to host this terrific event, and was thrilled by the event’s success. Attendees were very complimentary of the facility and of the city in general. MLBA looks forward to next year’s conference, which will take place in San Diego. For more information, click here: www.lavenderlaw.org.