District of Minnesota

Jerry Blackwell – Nominee to the U.S. District Court for the District of Minnesota

For more than thirty years, Jerry Blackwell has been a leader in the Minneapolis legal community. The outspoken attorney has now been tapped for the federal bench.

Background

A native of Kannapolis, NC, Jerry W. Blackwell received his B.A. from the University of North Carolina Chapel Hill in 1984 and then a J.D. from the University of North Carolina Chapel Hill School of Law in 1987.

After graduation, Blackwell joined Robins Kaplan LLP in Minneapolis, serving as a partner until he moved to Nilan Johnson Lewis in 1996. In 2000, Blackwell started the firm of Blackwell Igbanugo in Edina, Minnesota. In 2006, he moved to Blackwell Burke where he currently works as a partner.

In 2015, Blackwell was named a possible candidate for the federal bench to replace Judge Michael Davis. See Randy Furst, Names Begin to Surface for New Federal Judge Post, Minneapolis Star Tribune, Jan. 3, 2015. Minnesota Supreme Court Justice Wilhemina Wright was nominated instead and confirmed.

History of the Seat

Blackwell has been nominated for a seat on the U.S. District Court for the District of Minnesota. This seat opened on December 31, 2021, when Judge Susan Richard Nelson moved to senior status.

Legal Career

While he has moved firms a few times, Blackwell has spent his entire legal career in private practice in the Minneapolis area. However, this has netted him some prominent representations, including being the attorney for Minneapolis native Prince. See Cheryl Johnson, Purple House is Demolished; Prince’s Neighbors Say They Don’t Know Why He Leveled It, Minneapolis Star Tribune, Apr. 3, 2003.

Early in his career, Blackwell represented the Government of India in suits related to the Bhopal gas explosion. See David Phelps, ‘Zealous Advocate’ Wanted to Be Lawyer From Second Grade, Minneapolis Star Tribune, Aug. 5, 2012. Later, he defended 3M against lawsuits alleging that the company’s air blowers deposited infectious bacteria in surgical incisions. See Joe Carlson, 3M Case May Alter Medical Lawsuits, Minneapolis Star Tribune, Oct. 28, 2017. Blackwell also authored a successful pardon application for Max Mason, who was convicted in 1920 for allegedly raping a white woman (whose own doctor had testified that she had not been assaulted). See Brooks Johnson, Historic Pardon in Duluth Lynching, Minneapolis Star Tribune, June 13, 2020. The conviction had also prompted the lynching of three innocent black men in Duluth. See id.

Notably, Blackwell joined the prosecution team against police officer Derek Chauvin who was charged with murdering George Floyd in 2020. See Nicholas Bogel-Burroughs, What to Know About Jerry W. Blackwell, The Prosecutor Making Opening Arguments, N.Y. Times, Mar. 29, 2021. As part of the trial, which ended in a conviction, Blackwell made opening and closing remarks.

Political Activity

Blackwell has been a frequent political donor throughout his legal career. Among the benefits of his donations are Governor Tim Walz, Attorney General Keith Ellison, and President Barack Obama.

Writings and Statements

Throughout the years, Blackwell has written and spoken frequently in the media, particularly on issues of race. In 1992, Blackwell commented regarding the acquittal of police officers charged with beating Rodney King and subsequent rioting, noting:

“When we have systems in place designed to protect people and mete out justice, and when it’s apparent that they don’t further justice, my concern is that people are left to their own devices. Self-preservation steps in at some point and you have outbreaks, resistance, throughout the country” See Mark Brunswick, Jim Walsh, Kevin Diaz, At Rallies in Twin Cities, Many Decry Injustices While Police Aim to Reassure, Minneapolis Star Tribune, May 1, 1992.

In another article, Blackwell noted his emphasis on diversity in hiring, noting that it is “good business” as it attracts clients who are “reluctant to work with a firm that was hostile to hiring people of color and women.” Deborah Caulfield Rybak, Diversity ‘Good Business’ For Black-Owned Law Firm, Minneapolis Star Tribune, Feb. 9, 2003 (quoting Jerry W. Blackwell).

As President of the Minnesota Association of Black Lawyers, Blackwell had objected to the firm of Maslon, Edelman, Borman, & Brand from joining Twin Cities Diversity in Practice, a consortium of corporations and law firms seeking to hire minority attorneys, citing the firm’s representation of white students challenging affirmative action policies at the University of Michigan. See Katherine Kersten, 2 Standards for Diversity in the Legal Fraternity, Minneapolis Star Tribune, Sept. 7, 2006.

Overall Assessment

Jerry Blackwell would come to the federal bench with extensive experience with federal practice and with the Minneapolis legal community. While his outspokenness may draw some opposition, Blackwell is still nonetheless favored to join the federal bench before the end of the year.

149 CommentsLeave a comment

Judge Katherine Menendez – Nominee to the U.S. District Court for the District of Minnesota

U.S. Magistrate Judge Katherine Menendez, a former public defender, is the Biden Administration’s first nominee to the U.S. District Court for the District of Minnesota.

Background

Katherine Marie Menendez received a B.A. from the University of Chicago in 1993 and a J.D. from the New York University Law School in 1997.

After graduation, Menendez clerked for Judge Sam Ervin on the U.S. Court of Appeals for the Fourth Circuit. She then joined the Office of the Federal Defender for the District of Minnesota.

In 2016, Menendez was appointed to be a U.S. Magistrate Judge for the District of Minnesota, where she currently serves.

History of the Seat

Menendez has been nominated for a seat on the U.S. District Court for the District of Minnesota. This seat opened on October 15, 2019, when Judge Joan Ericksen moved to senior status. The Trump Administration did not put forward any nominee to fill this vacancy.

Legal Career

Menendez has spent her entire legal career before becoming a judge as a federal defender in the District of Minnesota. In this role, Menendez was appointed to represent indigent defendants in federal court, and handled a number of prominent cases. For example, Menendez argued before the Eighth Circuit that an airport police officer violated her client’s Fourth Amendment rights by picking up a suspicious package for a closer look. A unanimous panel of the Eighth Circuit disagreed and found no violation. United States v. DeMoss, 279 F.3d 632 (8th Cir. 2002).

Most notably, Menendez argued before the U.S. Supreme Court twice in Johnson v. United States, arguing that the possession of a sawed-off shotgun does not qualify as a violent felony under the Armed Career Criminal Act. After re-argument in the case, the Supreme Court struck down the Act’s residual clause, finding that it was unconstitutionally vague, siding with Menendez. Johnson v. United States, 526 Fed. Appx. 708 (2015).

In other matters, Menendez represented Justine Reisdorf, who was sentenced to five years in prison for running an online prostitution ring involving juveniles, and Zdenko Jakisa, a Bosnian man accused of concealing his involvement in crimes during the Bosnian war, including the killing of his Serbian neighbor.

Jurisprudence

Menendez has served as a U.S. Magistrate judge in Minnesota since her appointment in 2016. In this role, she handles settlement, discovery, and makes recommendations on dispositive motions. She also presides over cases where the parties consent.

Among the notable cases she handled, Menendez authored a Report and Recommendation finding that a Sudanese immigrant who was being held in ICE custody after a motor-vehicle theft conviction should receive habeas relief. See Bolus A.D. v. Sec’y of Homeland Security, 376 F. Supp. 3d 959 (D. Minn. 2019). Specifically, Menendez found that prolonged detention without a bond hearing violated the petitioner’s Due Process rights, and that the government had the burden to show by clear and convincing evidence that continued detention of the petitioner was warranted due to a danger to the community or risk of flight. Id. at 960. U.S. District Judge Wilhemina Wright adopted the first conclusion made by Menendez but reversed the second, finding that the Due Process Clause did not require the government to meet a particular standard of proof. Id. at 963.

In another case, Menendez authored a Report and Recommendation rejecting a challenge to a search warrant obtaining videos of the Defendant shooting a gun. See United States v. Eggerson, 999 F.3d 1121 (8th Cir. 2021). Judge Donovan Frank adopted the recommendation and a unanimous panel of the Eighth Circuit affirmed. Id. at 1127.

Writings

As a federal defender, Menendez has occasionally written on the law, primarily focused on federal criminal statutes. Shortly after the Johnson decision, Menendez drafted a law review article noting that the Supreme Court had “breathed new life” into the void for vagueness doctrine, and suggested that the Court could go further in striking down statutes that are unclear. See Katherine M. Menendez, Johnson v. United States Don’t Go Away, 31 Crim. Just. 12 (Spring 2016). Previously, Menendez discussed the impact of recent amendments to the sentencing guidelines, which were aimed at overturning the impact of Koon v. United States, which required departures from guidelines sentences to be evaluated based on abuse of discretion. See Katherine M. Menendez, De Novo Review of Sentencing Departures: The End of Koon v. United States, 27 Hamline L. Rev. 458 (Summer 2004).

Overall Assessment

With five years of experience as a magistrate judge and almost twenty as a public defender, and having argued twice before the U.S. Supreme Court, Menendez is likely to be deemed qualified for a seat on the federal bench. If and when she is confirmed, Menendez could likely be considered for any Minnesota vacancies that open on the Eighth Circuit.

9 CommentsLeave a comment

Eric Tostrud – Nominee to the U.S. District Court for the District of Minnesota

Eric Tostrud, a Minneapolis based attorney and law professor, is part of a package deal of nominees made between the Trump Administration and Minnesota’s Democratic senators.  Like his fellow nominee Nancy Brasel, Tostrud should be seen as a consensus nominee.

Background

A native Minnesotan, Eric Christian Tostrud was born in St. Paul on June 14, 1965.  Tostrud received his B.A. cum laude from St. Olaf College in 1987 and then a J.D. summa cum laude from the William Mitchell College of Law in St. Paul.[1]

After graduation, Tostrud clerked for Judge Edward Devitt on the U.S. District Court for the District of Minnesota and Judge George MacKinnon on the U.S. Court of Appeals for the D.C. Circuit. In 1992, he joined the Minneapolis office of Lockridge Grindal Nauen PLLP as an Associate.[2]  He was made a Partner at the firm in 1998, and became Of Counsel in 2014.[3]  He continues to practice as Of Counsel at Lockridge to this day.[4]

In 1993, Tostrud began teaching at Mitchell Hamline School of Law (formerly William Mitchell, his alma mater) as an Adjunct Professor.[5]  His title became Distinguished Practitioner in Residence in 2015.[6]  Additionally, Tostrud has been an Adjunct Professor at the University of Minnesota Law School since 2011.[7]

History of the Seat

Tostrud has been nominated for a seat on the U.S. District Court for the District of Minnesota.  This seat opened on October 31, 2016, when Judge Donovan Frank moved to senior status.  As the seat opened with only three months left in President Obama’s presidency, no nomination was ever made to fill the seat.

In November 2016, Tostrud applied for the judgeship with Minnesota Senator Amy Klobuchar (D-Minn).[8]  In January 2017, he also applied to the parallel application process conducted by Rep. Erik Paulsen (R-Minn).[9]  His name was submitted by Paulsen to the White House in June.

Meanwhile, Klobuchar (D-Minn) and the Trump Administration began negotiations over two vacancies on the U.S. District Court.  They ultimately agreed on Tostrud, Paulsen’s candidate, and Minneapolis Judge Nancy Brasel, who was supported by Klobuchar.[10]  President Trump announced both Brasel and Tostrud on July 13, 2017.[11]

Legal Career

Other than his clerkships and his position as a law professor, Tostrud has spent his entire legal career at the same firm: Lockridge Grindal Nauen PLLP (Lockridge).  At the firm, Tostrud worked in complex civil litigation, focusing on the Employee Retirement Income Security Act of 1974 (ERISA).[12]  Notably, Tostrud represented the Hartford Life & Accident Insurance Co. in defending many ERISA claims.[13]

In another notable case, Tostrud represented many hospitals in defending against antitrust claims brought by a group of nurse-anesthetists, successfully moving for summary judgment and defending the judgement on appeal.[14] In another case, Tostrud successfully defended against a class action suit alleging failure to provide insurance discounts.[15]

Since 2014, Tostrud has been a full-time law professor, teaching Federal Civil Procedure, Advanced Civil Procedure, and Electronic Discovery at Mitchell Hamline School of Law.[16]  Additionally, he has taught Federal Jurisdiction at the University of Minnesota Law School.[17]

Political Activity

Tostrud has had a close relationship with Paulsen, having served as his Finance Chairman on his state legislative and congressional campaigns.[18]  He has also been a generous donor to other Republicans, giving $10,000 to the Republican Party of the 3rd Congressional District of Minnesota in 2016, as well as donating to former Speaker John Boehner and Sen. Marco Rubio.[19]  However, Tostrud also donated $1000 to Sen. John Kerry (D-Mass.) in 2003.[20]

Writings

In 2001, Tostrud authored a letter to the editor for the Minnesota Lawyer discussing the Supreme Court’s recent 5-4 decision in Board of Trustees of the University of Alabama, et al. v. Garrett et al.[21]  The decision had held that the Eleventh Amendment barred citizens from suing states for violations of the Americans with Disabilities Act (ADA).  In the letter, Tostrud is critical of the decision.[22]  Specifically, he notes that the decision is contrary to the plain text of the Eleventh Amendment, stating:

“When the Supreme Court openly disregards the actual words of the Constitution to reach an outcome, the consequences can be grave.”[23]

Overall Assessment

As with his paired nominee, Nancy Brasel, Tostrud is a consensus nominee.  While Tostrud has a longer record of political donation and activity than Brasel, it is important to note that political activity should not, in and of itself, disqualify nominees for the bench.  Furthermore, Tostrud has the support of Klobuchar, who is well respected on both sides of the aisle, and who will help him navigate the confirmation thicket.

If confirmed, Tostrud will likely be a moderate-conservative jurist.  Looking at his 2001 letter to the editor, Tostrud appears to advocate a focus on the “plain text” of the Constitution in interpretation, an approach generally identified with conservatives.  However, the letter itself applies that interpretation to support a “liberal” result, and one advocated by the Supreme Court’s liberal dissenters.  This suggests, not necessarily that Tostrud is a liberal or a conservative, but rather that his focus is on getting the law correct, rather than the outcome.

Given these factors, Tostrud should be comfortably confirmed alongside Brasel, restoring the Court to full strength.

[1] Sen. Comm. on the Judiciary, 115th Cong., Eric Tostrud: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 32.

[9] Id.

[10] Stephen Montemayor, White House Moves Closer to Filling Minnesota’s U.S. Attorney, Federal Judge Openings, Minneapolis Star Tribune, Dec. 14, 2017, http://www.startribune.com/white-house-moves-closer-to-filling-minnesota-s-u-s-attorney-federal-judge-openings/464179853/.  

[11] Press Release, White House, President Donald J. Trump Announces Eleventh Wave of Judicial Candidates (Feb. 12, 2018) (on file at https://www.whitehouse.gov/the-press-office/2017/07/13/president-donald-j-trump-announces-eleventh-wave-judicial-candidates).  

[12] See Tostrud, supra n. 1 at 15-16.

[13] See, e.g., Feller v. Hartford Life & Accident Ins. Co., 817 F. Supp. 2d 1097 (S.D.Iowa 2010); Meylor v. Hartford Life & Accident Ins. Co., 444 F. Supp. 2d 963 (N.D. Iowa 2006); Sloan v. Hartford Life & Accident Ins. Co., 433 F. Supp. 2d 1037 (D.N.D. 2006); Dorholt v. Hartford Life & Accident Ins. Co., 417 F. Supp. 2d 1094 (D. Minn. 2006); Lao v. Hartford Life & Accident Ins. Co., 319 F. Supp. 2d 955 (D. Minn. 2004); Estate of Bruce Haag v. Hartford Life & Accident Ins. Co., 188 F. Supp. 2d 1135 (D. Minn. 2002); Vesaas v. Hartford Life & Accident Ins. Co., 981 F. Supp. 1196 (D. Minn. 1996).

[14] See Minn. Assoc. Of Nurse Anesthetists v. Unity Hosp., et al., 208 F.3d 655 (8th Cir. 2000), aff’ing, 5 F. Supp. 2d 694 (D. Minn. 1998).

[15] Palmer v. Illinois Farmers Ins. Co., 820 F. Supp. 2d 1004 (D. Minn. 2011), aff’d, 666 F.3d 1081 (8th Cir. 2012).

[16] Tostrud, supra n. 1 at 29-30.

[17] Id. at 29.

[18] See S.T., At the Races, Roll Call, Jan. 15, 2008.

[20] See id.

[21] Eric Tostrud, Commentary on Recent Supreme Court Decision, The Minnesota Lawyer, Mar. 26, 2001.

[22] See id. 

[23] Id.

2 CommentsLeave a comment

Judge Nancy Brasel – Nominee to the U.S. District Court for the District of Minnesota

Judge Nancy Brasel, a well-respected state jurist in Minnesota, is part of a package deal of nominees made between the Trump Administration and Minnesota’s Democratic senators.  Her moderate record and uncontroversial background should net her a comfortable confirmation.

Background

Brasel was born Nancy Ellen Notebook in Durham in the United Kingdom on January 20, 1969.  Brasel attended Trinity University in San Antonio and then received a Master of Arts from the University of Texas at Austin.  Brasel then attended the University of Minnesota Law School, graduating in 1996.[1]

After graduation, Brasel clerked for Judge Donald Lay on the U.S. Court of Appeals for the Eighth Circuit. She then joined the Minneapolis office of Leonard Street and Deinard as an associate.[2]  In 1999, she joined Greene Espel PLLP as a member and became a partner in 2002.[3]  In 2008, Brasel left the firm to become a federal prosecutor with the U.S. Attorney’s Office for the District of Minnesota.[4]

In 2011, Democratic Governor Mark Dayton appointed Brasel to a seat on the 4th Judicial District of Minnesota, which covers Hennepin County (Minneapolis).[5]  She continues to serve on that court to this day.

History of the Seat

Brasel has been nominated for a seat on the U.S. District Court for the District of Minnesota.  This seat opened on May 31, 2016, when Judge Ann Montgomery moved to senior status.  As the seat opened with only seven months left in President Obama’s presidency, no nomination was ever made to fill the seat.  In early 2017, Brasel applied for the judgeship with Rep. Erik Paulsen (R-Minn).[6]

Meanwhile, Minnesota Senator Amy Klobuchar (D-Minn) and the Trump Administration began negotiations over two vacancies on the U.S. District Court.  They ultimately agreed on Brasel, Klobuchar’s candidate, and Minneapolis attorney Eric Tostrud, who was supported by Paulsen.[7]  President Trump announced both Brasel and Tostrud on July 13, 2017.[8]

Legal Career

After her clerkship with the strongly liberal Lay, Brasel worked as an associate at Leonard, Street & Deinard, where she defended employers in employment law, discrimination, and sexual harassment cases.  For example, Brasel helped a defendant employer against an action for “negligent infliction of emotional distress” brought by a former employee.[9]

In 1999, Brasel moved to Greene Espell PLLP, handling more complex litigation including securities actions.  While at the firm, Brasel defended fourteen Northern Minnesota cities being sued for fraud based on representations related to municipal bonds, successfully settling the case.[10]  She also represented Deloitte on appeal in defending a negligent misrepresentation action.[11]

In 2008, Brasel became a federal prosecutor for the U.S. Attorney’s Office for the District of Minnesota, handling white collar crime and narcotics cases.[13]  Notably, she  prosecuted 23 defendants for drug trafficking based on evidence from wiretaps, leading to guilty pleas from all defendants.[14]

Jurisprudence and Reversals

Brasel has served as a District Court judge in Minneapolis since her appointment in 2011.  In this role, she serves as a primary trial judge, supervising criminal and civil cases.  Over the last six years, Brasel has presided over approximately 75 trials, including approximately 25 jury trials.[15]  Brasel’s more prominent trials include a breach of contract case regarding commercial flooring,[16] the termination of parental rights in a case where the father had killed one of his children,[17] and a challenge to the warrantless collection of a urine sample by a DUI defendant.[18]

Over the course of her seven year tenure on the state bench, Brasel has been reversed by higher courts in five cases.[19]  Of those five reversals, in two cases, Brasel’s grants of summary judgment to the defendant were reversed by a higher court.[20]  Another two reversals were in criminal cases, reversing a conviction[21] and a sentence[22] respectively on appeals from defendants.  The final case reversed the grant of a motion to suppress by Brasel.[23]

Political Activity

Other than her nonpartisan election campaign in 2012, Brasel has a relatively limited political history.  She has never participated in political campaigns and has only two political contributions of record: both to Klobuchar.[24]

Writings

In 2002, Brasel authored an article discussing Minnesota’s Private Attorney General statute as it relates to fraud cases.[25]  Specifically, she discussed a then-recent Minnesota Supreme Court decision that limited private attorney general cases to those that conferred a “public benefit.”  In reviewing the statute’s text, legislative history, and purpose, as well as similar statutes in other states, Brasel suggested two factors that could determine “public benefit,” whether the attorney general had authority to bring the suit, and the number of consumers affected by the defendant’s actions.[26]

Overall Assessment

Among the pool of Trump nominees, Brasel is a fairly consensus pick.  Appointed to the state bench by a Democrat and recommended by another, Brasel also has a mainstream record on the state bench, and an uncontroversial background.

Given these factors, Brasel should be confirmed with bipartisan support this year, lending relief to an overworked federal bench in Minnesota.

[1] Sen. Comm. on the Judiciary, 115th Cong., Nancy Brasel: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] Id.

[4] Id.

[5] Dan Heilman, Minnesota Gov. Dayton Fills Judge Slots; Most From Public Sector, The Minnesota Lawyer, Sept. 16, 2011.

[6] Brasel, supra n. 1 at 35.

[7] Stephen Montemayor, White House Moves Closer to Filling Minnesota’s U.S. Attorney, Federal Judge Openings, Minneapolis Star Tribune, Dec. 14, 2017, http://www.startribune.com/white-house-moves-closer-to-filling-minnesota-s-u-s-attorney-federal-judge-openings/464179853/.  

[8] Press Release, White House, President Donald J. Trump Announces Eleventh Wave of Judicial Candidates (Feb. 12, 2018) (on file at https://www.whitehouse.gov/the-press-office/2017/07/13/president-donald-j-trump-announces-eleventh-wave-judicial-candidates).  

[9] See Riebhoff v. Cenex/Land O’Lakes Agronomy Co., 1998 Minn. App. LEXIS 1408 (Minn. Ct. App. Dec. 29, 1998).

[10] Franklin High-Yield Tax-Free Income Fund v. City of Baudette, et al., No. 98-CV-1576, 1999 WL 33912055 (D. Minn. Sept. 13, 1999).

[11] Crest Group, Inc. v. Deloitte & Touche, LLP., No. 27-CV-03-005617 (Minn. Ct. App. Sept. 25, 2007).

[12] See id.

[13] Brasel, supra n. 1 at 26.

[14] United States v. Abdul-Ahad, No. 08-CR-142 (D. Minn. Oct. 27, 2008).

[15] See Brasel, supra n. 1 at 9.

[16] Building Restoration Corp. v. B&B Companies, Inc., No. 27-CV-15-21845.

[17] In the Matter of the Welfare of the Children of C.A.P., Nos. 27-JV-14-7814 and 27-JV-16-1631.

[18] State v. Taylor, No. 27-CR-12-8310.

[19] Brasel, supra n. 1 at 22.

[20] See Bray v. Starbucks Corp., No. 27-CV-16-3979 (Minn. Dist. Ct. Mar. 24, 2017), aff’d in part, rev’d in part, No. A17-0823 (Minn. Ct. App. Dec. 26, 2017) (reversing grant of summary judgment on public accommodation claim); Tap House Restaurant v. Cassidy Turley Comm. Real Estate Serv., No. 27-CV-16-7177, rev’d, No. A17-0774 (Minn. Ct. App. Dec. 11, 2017).

[21] State v. Witherspoon, No. 27-CR-11-28854, rev’d, No. A12-1247 (Minn. Ct. App. July 1, 2013) (reversing conviction for second degree riot based on sufficiency of the evidence).

[22] State v. Charette, No. 27-CR-11-28468, aff’d in part, rev’d in part, No. A12-1541 (Minn. Ct. App., Sept. 3, 2013) (reversing for resentencing).

[23] State v. Harrington, No. 27-CR-11-28655, rev’d, No. A17-0774 (Minn. Ct. App. Dec. 11, 2017).

[25] Nancy E. Brasel, Recent Decisions of the Minnesota Supreme Court: Ad Hoc Deceptions in Private Disputes: When Does a Private Plaintiff Confer a Public Benefit Under Minnesota’s Private Attorney General Statute, 29 Wm. Mitchell L. Rev. 321 (2002).

[26] See id. at 341.

1 CommentLeave a comment