STATE OF MINNESOTA IN THE SUPREME COURT In Re Petition for Disciplinary Action against MICHELLE LOWNEY A Minnesota Attorney Registration No. 182370 REPLY BRIEF Paul Engh, Lic. 134685 Susan Humiston, Lic. 254289 Suite 420 Director, Of?ce of Lawyers 200 South Sixth Street Professional Responsibility Minneapolis, MN 55402 345 St. Peter Street 612.252.1100 St. Paul, MN 55102 ATTORNEY FOR RESPONDENT ATTORNEY FOR PETITIONER TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF AUTHORITIES ii PROCEDURAL HISTORY 1 STATEMENT OF ISSUES 2 STATEMENT OF THE CASE 3 STATEMENT OF THE FACTS 4 I I. BY PERMITTING HER ARREST AND HANDCUFFING, THE DISTRICT COURT PREVENTED MS. MACDONALD FROM ZEALOUS REPRESENTATION OF HER THE FINDING-THAT SHE ABANDONED THE LITIGATION IS THUS UNSUPPORTED BY CLEAR AND CONVINCING EVIDENCE II. MS. MACDONALD HAS BEEN ERRONEOUSLY SANCTIONED FOR EXERCISING HER FIRST AMENDMENT RIGHT TO CRITICIZE THE - JUDICIARY FOR HER IMPROPER HANDCUF ING AND INCARCERATION DURING A TRIAL MS.- MACDONALD LITIGATED IN GOOD FAITH, IN ACCORD IF HER WISHES IV. WHERE THE MITIGATING FACTS FAR OUTWEIGH THE AGGRAVATING FACTORS, THE SUGGESTED DISCIPLINE IS NOT WARRANTED 9 CERTIFICATE OF COMPLIANCE - IO TABLE OF AUTHORITIES CASES File No. 17139, 720 807 (Minn. 2006) In re Aitken, 787 152 (Minn. 2010) 7 In re Wylde, 454 423 (Minn. 1990) 7 In the Matter of Conrad Hafer, No. 72453 (Nev. Supreme Court 2017) 3 New York Times V. Sullivan, 376 US. 254 (1964) 4 Republican Party V. White, 536 US. 765 (2002) 5 Republican Party V. White, 416 F.3d 838 (8th Cir. 2005)(en banc) 5 Standing Committee on Discipline v. Yagman, 55 F.3d 1430 (9th Cir. 1995) 5 State V. Miller, 573 NW. 661 (Minn. 1998) 1 State v. Staats, 658 207 (Minn. 2003) 1 ii ARGUMENTS I. BY PERMIT TING HER ARREST AND INSISTIN SHE PROCEED WHILE HANDCUFFED, THE DISTRICT COURT PREVENTED MS. MACDONALD FROM ZEALOUSLY REPRESENTING HER THE FINDING THAT SHE ABANDONED THE LITIGATION IS UN SUPPORTED BY CLEAR AND CONVIN CIN EVIDENCE For the Board to suggest the presiding Judge was a nonufactor in this unfortunate arrest spectacle, is to render the bench powerless to correct something that should never had occurred. Brief at p. 18. Fault lies beyond Ms. MacDonald?s innocent conduct. To blame her for a continuous incarceration is unfair. She was rendered powerless by the cuf?ng. Neither the Board nor Referee address Ms. Lisa Elliot?s viewpoint as to Ms. MacDonald?s arrest, that ?it didn?t appear that she could have said no T. 148. The ?reasonable person in the suspects?s situation [would] have understood that [s]he was in custody.? State V. Staats, 658 207, 211 (Minn. 2003)(quoting State V. Miller, 573 661, 670 (Minn.l998)). Ms. MacDonald most certainly did. There can be no other interpretation as to her custodial status. When a lawyer is escorted from the Courtroom and returns in cuffs and wheelchair, she is arrested. Once arrested, of course, she has the right not to speak. Whatever Ms. MacDonald would have said, at least in part, would have addressed her alleged crime, possibly the taking of a harmless photograph. The Board embraces the thought of singular blame. That Ms. MacDonald alone failed to address her problem by refusing to announce her name. Brief at p. 19?20; Findings para. 69. Judge Knutson?s testimony dismissed that myopic viewpoint. His cross: Would you agree that there is no need whatsoeVer to find out who she is because she was already well known in this case? A. I agree.? T. 81. We request this exchange be quoted in the Court?s opinion, right after discussing the Board?s contention that Ms. MacDonald caused her own incarceration by not providing a name the deputies already knew. Judge Knutson?s own reservations ought to matter, and that?s why we ordered a transcript rather than rely on the Referee?s ?ndings, which were by and large adopted from the Board?s proposed verbiage. Again, the Court on cross: There was absolutely no need for them to take her; fair enough? A. I would agree to that.? T. 109. In light of Judge Knutson?s admissions, we contested the efficacy of her arrest. Ms. MacDonald saw no reason for her detention. Neither did the Couret. She didn?t leave her client?s case. She was taken away. Because of the needless arrest, the Board advances an argument, accepted by the Referee, that Ms. MacDonald did not competently represent her client during the second day of trial. The Board claims is undisputed that respondent essentially abandoned her client?s case that day.? Brief at p. 19. The record differs. A dispute existed. MacDonald was asked if she were incompetent the second day of trial, and she responded, would agree. I wasn?t available to represent my client the second day of trial. I was under arrest.? Trans. at p. 292 (emphasis added). A lawyer ?under arrest? can?t zealously represent her client. Of necessity, the Board has to short change the importance of In re Hafen (Nev. 2017). Brief at p. 19. The lawyer in that case, Ms. Bahtary, was similarly given no choice in her restriction. She, too, should not have been cuffed. She, too, became unavailable to her client. Her client, too, was not competently represented. And whose fault was all of that in Nevada? Judge Hafer agreed that it was his. We ask for the same ruling. 11. MS. MACDONALD CANNOT BE DISCIPLINED FOR EXERCISING HER FIRST AMENDMENT PROTECTED RIGHTS TO CRITICIZE THE BENCH AND TO FILE A COMPLAINT WITH THE BOARD OF JUDICIAL CONDUCT The Board does not attempt to defend the Referee?s central finding and rationale for discipline that while a case is pending, the lawyer may not criticize the Judge. Brief at pp. 20?25. Nor does the Board adequately explain why sitting Judges Miera and Lange are not sanctioned for accusing their fellow jurists of bloodthirstiness and abject imagined conspiracies and denials of dire process and Ms. MacDonald now is. The Board makes much of the particular code Violations alleged against those judges. Brief at p. 25. What is far more signi?cant is that their deplorable verbiage was not sanctionable. Nothing Ms. MacDonald said or wrote measures up to what they said. - Ms. MacDonald had more than a good faith claim that Judge Knutson knew she had been cuffed, despite his denial. The Deputies in the Court room told him so, sworn testimony that both the Referee and Board omit. Respondent Exh. 119, the testimony of Deputy Christopher Melton: So you informed Judge Knutson she was in handcuffs? A: Yes.? The Board misreads Standing Committee on Discipline V. Yagman, 55 F.3rd 1430 (9?1 Cir. 1995). Brief at p. 23. Yagman holds that a lawyer may be disciplined for impugning the integrity of the court ?only if their statements are false.? 1d. at 1438. Statements of opinion e. that the Court is biased, unfair, should be removed from a particular case, or wrongly cuffed an advocate are not sanctionable. 1d. This is not the recklessness standard. Compare Brief at p. 23. The Yagman opinion went even further, holding that the lawyer?s criticism of the bench interfered with the administration of justice only if his statements presented a ?clear and present danger.? E. at 1442. Ms. MacDonald?s did not. Both Ms. MacDonald and her client were entitled to complain. Ms. Grazzini-Rucki could have testi?ed as to all of the facts the Board and Referee find offensive or untrue, and yet she would have immunity defamation, a First Amendment protection. See generally Mahonev and Hagberg v. Newgard, 729 302, 206 (Mimi. 2007). She verified the federal complaint and its allegations as true. Ms. MacDonald could believe her. File No. 17139 720 807, 814 (Minn. 2006)(noting the lawyer?s source of information may be relied upon). If the lawyer doesn?t believe in the client, no one else will. Yes, Ms. MacDonald was required to ?inform? herself as to the facts. Brief at p. 24. But she was not obligated, as the Board suggests, to abandon her client?s disputed version. Brief at p. 24. Lawyers ought not be in the abandonment business. The Board also failed to address our claim that Ms. MacDonald had the right to write and speak out on disputed legal issues her phony arrest, her claim of divorce court unfairness, and that Judge Knutson was an deficient jurist just as a candidate for judicial of?ce now can. In Republican Party v. White, 536 U.S. 765 (2002); Republican Party of Minnesota v. White, 416 F.3d 838, 759?766 (8th Cir. 2005)(en bane). MS. MACDONALD LITIGATED IN GOOD FAITH, IN ACCORD IF HER WISHES The Board argues a menu of violations, leading off with the photograph of the empty courtroom that is permitted by Rule 4.01. Brief at p. 29. The trend in the law is open Conrtroorns to the public. This Court?s oral arguments are videotaped and downloaded for every interested party to see. To avoid needless prolixity, we rely on our opening brief, and the law the Board has declined to address the con?ict between a statewide and local rule, the consent by the Deputy to have his picture taken, and utter lack of prejudice to anyone. Fora small, inconsequential act the snapping of an electronic I photograph Ms. MacDonald now faces a loss of livelihood. or a criminal charge that was dismissed by the District Court. The Board next complains of Ms. MacDonald?s advocacy in general, re?ected in snippets of old transcripts; Brief at p. 30. In a hotly contested trial, there will be interruptions, and moments where the Court asks the litigants to exhale. The courtroom experience is intensely felt. The lawyer who is not vested is unconvincing. One of the key factors to consider, which the Board does not address, has to be whether the client feels as if his or her claim was adequately heard. That was Ms. MacDonald?s primary role, to be the collective voice for Mr. D?Costa and Ms. Grazzini?Rncki. They have not complained in the least about their trials and appeals. Judge Edward Devitt always asked the litigants at the end of an appearance, ?Have I heard you out?? If the answer was yes, the hearing was a success despite the outcome, or who the lawyers were. Ms. MacDonald?s clients were heard out. IV. WHERE THE MITIGATING FACTS FAR OUTWEIGH THE MITIGATING FACTORS, DISCIPLINE OF SIXTY-DAYS WAS UNWARRANTED, AS WAS THE SUGGESTION FOR A EVALUATION The Referee erred in ?nding no mitigating factors. The Board has likewise failed to address Ms. MacDonald?s proudest achievements, namely her Q9139 efforts, coupled with a near thirty?years of practice. The Board misreads In re Aitken, 787 152 (Minn.2010), for the proposition that a long career does not serve as a ?credit in mitigation.? Brief at p. 35. doesn?t hold that. The lawyer was only ten years out, and committed extensive fraud. E. at 162. By way of contrast, this Court in In re Wylde, 454 423 (Minn. 1990) recognized Jack Wylde?s otherwise exemplary twenty-two year career as a mitigation fact against his violations for failing to file tax returns. He received a probationary disposition. In Opening brief, we relied upon W_L1de. The Board has declined to distinguish that decision. The Board, joined by the Referee, also omit mitigating mention of Ms. MacDonald?s service in the Hennepin County Conciliation and Family Corirts for two decades. T. 381?82. See Brief at p.35; Findings 133-139. It cannot be that the status of a judge is meaningless. The Board and the Referee similarly refuse to acknowledge and credit Ms. MacDonald?s extensive 1% work is a mitigation. Brief at p. 35; Findings at para. 133. This is error as well. In re Wylde, 454 at 424. The Lawyers 1w award was given to Ms. MacDonald in 2013, 2014, and 2015, for good reason. T. 379. We?re measured in large part by what we do. The Board and Referee?s omission cheapens the pro bono obligation all lawyers share. CONCLUSION For the above reasons, and those advanced in her opening brief, Ms. MacDonald respectfully requests this Court reverse the Referee?s suggested ?ndings, and order no discipline is warranted. Dated: May 18, 2017 Respectfully submitted, Paul Engh Paul Engh, Lic. 134685 Suite 420 200 South Sixth Street Minneapolis, MN 55402 612.252.1100 Lawyer for Ms. MacDonald CERTIFICATE OF COMPLIANCE I hereby certify that Ms. MacDonald?s Reply Brief in case complies with the Minnesota Rules of Appellate Procedure 132.01, Subd. and that the brief contains 1,822 words. The Brief was prepared using WordPerfeet (2005), and complies with the typeface requirements of Rule 132.01. Dated: May 18, 2017 Paul Engh Paul Engh 10