Yesterday, as with nearly every Monday, was the week’s opinion release day at the Minnesota Court of Appeals. The Court of Appeals issued three published opinions, two in civil cases, one in a criminal case. In State v. Christensen, the court held that a conservator cannot request restitution on behalf of a ward.
David Christensen stole from his uncle, A.C., a vulnerable adult. He was charged with financial exploitation of a vulnerable adult, was found guilty at a jury trial, and was sentenced. After sentencing, A.C.’s conservator, Lutheran Social Services, requested restitution on A.C.’s behalf. A.C.’s guardian, on the other hand, informed the district court that A.C. did not want restitution from Christensen. The district court decided that the conservator was able to claim restitution on A.C.’s behalf and issued a restitution order. Christensen appealed both the conviction and the restitution order.
The Court of Appeals reversed the restitution order. (It affirmed the conviction – embarrassingly, Christensen’s appellate attorney seems to have based that part of the appeal on a simple misreading of the jury verdict form.) Restitution, like other parts of a criminal sentence, must based on the authority of statute – in this case, Minnesota Statutes §§ 609.10 and 611A.51–611A.68. In felony cases, as relevant here, restitution can be made to a victim or a victim’s family. And “victim,” for our purposes, means “a natural person who incurs loss or harm as a result of a crime,” and “includes the family members, guardian, or custodian of a minor, incompetent, incapacitated, or deceased person.” Thus, in Christensen’s case, there would have been no question about restitution if the guardian had requested restitution on A.C.’s behalf – the guardian is explicitly listed in the statute as being authorized to receive it. The issue arose only because the guardian and the conservator disagreed. The Court of Appeals held that the listing of those authorized – “family members, guardian, or custodian” – reflected an inference that those not on the list were intentionally excluded.
Judge Tracy Smith wrote an opinion concurring with the affirmance of the conviction but dissenting from the reversal of the restitution order. She wrote that she would have held that the conservator’s authority (also defined by statute, and defined rather broadly) to preserve A.C.’s estate gave it the authority to seek restitution even without the restitution statute’s explicit authorization. Her reading of the restitution and conservatorship statutes is that they can be read together and are reconcilable rather than the majority’s holding, in which the restitution statute limits the conservatorship statute. She also noted the differences between a “family member, guardian, or custodian,” all of whom “have a role in caring for the person, [while] a conservator’s only role is in managing that person’s estate.”
We think the panel majority got this one wrong and Judge Smith has it right. The panel majority uses a limited and mechanical reading of the restitution statute and, in doing so, largely ignores the conservatorship statute. As Judge Smith notes in her concurrence and dissent, the Minnesota Supreme Court has approached things differently where conservators are concerned.
This decision will lead to some absurd results. Theft (and other misuse of money) isn’t just a criminal concern, it’s a civil one as well. The conservator is clearly able to sue on A.C.’s behalf, so while it will be barred from seeking criminal restitution it could sue Christensen for his theft and obtain an ordinary civil judgment. But that’s exactly the kind of cumbersome process that restitution is meant to let victims avoid.
This is an issue that’s both important enough and close enough it would not be surprising to see the State seek, and the Supreme Court grant, further review.
The law can seem odd. Earlier this month, a 1999 Lexus (the one carrying Minnesota license plate 851LDV and VIN JT6HF10U6X0079461, to be specific) filed an appeal to the Minnesota Court of Appeals. Confused? Let us explain.
For the most part, courts exercise what’s called in personam jurisdiction, or their power over people or organizations. However, there is a concept called in rem jurisdiction, which is power that a court has over a piece of property. When a case is based on in rem jurisdiction, the title of the case usually includes a description of the property. Thus, you have some famous cases (to lawyers, at least) such as United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973) and United States v. One Package of Japanese Pessaries, 86 F.2d 737 (2d Cir. 1936). They can sound pretty silly. In Minnesota, like for federal cases, lawsuits over forfeitures are titled (Name of Person Suing) vs. (Name of Property). The property, though it typically belongs to a person or organization, is the party. That’s how we end up with Megan Ashley Olson, et al. vs. One 1999 Lexus MN License Plate No. 851LDV VIN: JT6HF10U6X0079461, Minnesota appellate file number A17-1083, currently pending briefing in the Minnesota Court of Appeals.
We’re not highlighting this case just because it’s a chuckle-worthy name, though.
One of the many consequences that can result from a DWI arrest, particularly when the person arrested has prior offenses, is that the government will try to forfeit the vehicle with which the DWI was allegedly committed. What often happens is that the forfeiture will be handled administratively, meaning all that happens is that the interested parties will get a piece of paper providing notice of the government’s intent to forfeit the property, and unless someone files a court case to challenge the impending forfeiture, the property will be gone. All the way back in August of 2015, Ms. Olson was arrested for felony DWI because she had three prior DWI convictions within the previous ten years. Because she had those prior convictions, the Shakopee Police Department seized the car she was driving (which belonged to her mother) and served notice on Ms. Olson and her mother that it intended to forfeit the vehicle.
Represented by the highly-regarded Chuck Ramsay and Daniel Koewler at Ramsay Law Firm in Roseville, who focus their practice on DWI and DWI-related cases, Ms. Olson and her mother jointly filed a lawsuit opposing the forfeiture. One of the many defenses to the forfeiture that they raised was that the DWI forfeiture statute is unconstitutional because it doesn’t provide due process to person claiming the vehicle. They moved for summary judgment and, in May, Judge Christian S. Wilton of Scott County District Court granted the motion. The car, represented by the, Scott County Attorney’s Office, has appealed. While no one knows how this fight will ultimately turn out, for now there is a strong basis to challenge forfeitures in Minnesota.
Forfeiture laws are often criticized because they can be brutally unfair. Unlike in criminal cases, there isn’t a right to an attorney if you can’t afford one, so many forfeitures go uncontested simply because it doesn’t make financial sense to fight them. Some progress has been made both at the federal level and at the state level (where our very own Tina Liebling has been a leader on this issue), but especially in Washington, that progress is being rolled back.
We congratulate Chuck and Dan on their victory in district court and we’ll be closely watching the Court of Appeals case.
We’re very proud to announce that Liebow & Liebling, PLLC has been nominated for a 2017 Post-Bulletin Readers Choice Award! Voting is now open and runs through August 6th. Would you please take a moment to vote for us?
Allow us for a moment to toot our own horn. Earlier this month we received a great decision on a serious criminal case here in southeastern Minnesota. Our client was charged with a felony that had allegedly been committed by phone. We filed a motion to dismiss the case for lack of jurisdiction and venue, as we felt that the government didn’t have a basis to charge our client in the court that it chose. After a hearing at which David L. Liebow underscored the weaknesses in the State’s case, the court granted our motion and dismissed the case. The prosecutor could have appealed to the Minnesota Court of Appeals but declined to do so.
Under the Minnesota Constitution, every criminal defendant is entitled to “an impartial jury of the county or district wherein the crime shall have been committed, which county or district shall have been previously ascertained by law.” Ultimately, that means that cases have to be processed in an appropriate court. In addition, in Minnesota, the vast majority of felony cases are prosecuted by county attorneys (called district attorneys in many places), and those county attorneys only have the power to prosecute cases within their jurisdictions. (Misdemeanor cases are a bit more complicated, as some are prosecuted by city attorneys and some are prosecuted by county attorneys.) Often, this is cut-and-dried – an assault that occurs in Rochester has to be prosecuted within Olmsted County by the Rochester City Attorney’s Office or the Olmsted County Attorney’s Office. The Minnesota Rules of Criminal Procedure also have a number of special venue rules. For example, they provide that crimes committed on or within 1,500 feet of a county line can be prosecuted in either county, and crimes “occurring within a municipality located in more than one county or district must be prosecuted in the county where the municipality’s city hall is located, unless the municipality designates by ordinance some other county or district in which part of the municipality is located.” (That’s why you’ll be prosecuted in Fillmore County if you commit a crime in the Olmsted County portion of Chatfield or in Goodhue County if you commit a crime in the Olmsted County portion of Pine Island.) But occasionally, the issue is less clear. Venue can be challenged before trial, as we did, but it is also an element of the offense that the prosecutor has to prove at trial beyond a reasonable doubt. A defendant will sometimes even be acquitted or his conviction reversed because venue was incorrect or not proven beyond a reasonable doubt or because the wrong prosecutor tried the offense.
Though what county a case is prosecuted in may not seem like much, we’re proud to hold prosecutors to what the law requires on issues big and small.
The accolades keep on rolling in! We’re excited to announce that David L. Liebow has received a 2017 Avvo Clients’ Choice Award. This award is based on client feedback received this year through Avvo, where David sports a 10.0 rating and a five-star average review. Earlier this year, David was recognized on the Super Lawyers Rising Stars list for 2017. We’re grateful to have the opportunity to serve our clients and grateful that our clients have been kind enough to recognize the work we do for them.