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.