A brief review of eighth-grade civics (powdered wig and musket issues):
Both the United States and Minnesota governments have three branches of government. The legislative branch makes laws, and the executive branch enforces them (by use of police and administrative agencies such as the Social Security Administration and the Department of Human Services). Since Marbury v. Madison (1803) established the principle of judicial review, the judicial branch supervises how the other two do their jobs.
Most Americans can vote in two months to choose who reviews laws and restrains executive overreach by directly voting for state court judges and voting for U.S. Senators who confirm federal judges. As a criminal defense lawyer, I try to persuade the judges, once seated, to make the right decisions based on my commitment to individual liberties. I explain with examples, below.
Why Judges Make Everyone Angry
In performing this act of judicial oversight, judges usually anger half the population with any given decision: both of America’s two dominant political tribes complain about “activist judges.” But whether a particular judicial decision is an example of judicial activism or reasonable judicial interpretation just depends on whether you like the decision. If you do, then “activism” becomes a welcome corrective to the other branches’ overreaches. If not, then we complain about unelected judges making law.
By the way, in Minnesota, judges are elected (although most state court judges are appointed to fill a vacancy, they then run for election or reelection every six years).
How the Courts Have Reshaped the Law of Searches
Here’s an example of how this works.
Drunk driving is a crime in all fifty states. If the police suspecting a drunk driver want to test a driver’s breath, blood, or urine, and that person objects, that raises two questions. As a preliminary matter, was the test a search. Second, if it was a search, was it permitted.
These simple questions have led to several recent decisions by the U.S. and Minnesota Supreme Courts. Briefly, the courts have held that testing breath is not a search because your breath is not private and inspecting it is not intrusive, while testing urine and breath are searches. In order, the cases that so ruled are Bernard (Minnesota Supreme Court and U.S. Supreme Court), Trahan (Minnesota Supreme Court), and McNeely (U.S. Supreme Court). In these cases, the courts were correcting executive overreach after police conducted such searches without warrants (police are part of the executive branch of government).
But Minnesota has a law criminalizing the refusal of a search pursuant to a charge of drunk driving. Therefore, in Minnesota, if you are caught driving drunk (your test result is over the legal limit of 0.08) that is a crime, and if you refuse to take the test to determine your blood alcohol concentration, that is also a crime (usually a higher degree of crime than testing over the limit because the legislators want you to take the test).
Logically, following the cases I described above, the Supreme Courts (state and federal) have held that laws criminalizing refusal of a warrantless blood or urine test is unconstitutional (since it is unconstitutional to search blood and urine without a warrant, it can’t be a crime to refuse the unconstitutional search). Bernard (again), Thompson (Minnesota). In finding the refusal statutes unconstitutional, the courts were correcting legislative overreach.
“Rights” or “Technicalities”
None of this happens automatically. An aggrieved person has to go to the lowest level of court (called “district court” or “trial court”) and challenge the statute under which he or she was charged or the police conduct under the statute that may have violated the constitution.
Tyler McNeely, William Bernard, Todd Trahan, and Ryan Thompson were all real people whose lawyers spent years arguing had been wronged by an unconstitutional law or unconstitutional enforcement of a law. None were my clients, but I was asked to and did write briefs (Supreme Court arguments) on behalf of William Bernard (U.S. Supreme Court) and Todd Trahan (Minnesota).
Again, perspective is everything: people often say that defense lawyers like me get charges dismissed on technicalities, but I consider my job to defend fundamental liberties (the rights in the U.S. Constitution’s “Bill of Rights” and in Article I of the Minnesota Constitution). I argue that the gradual-but-persistent erosion of rights makes us all less free in small ways that aggregate into oppression.
These are, in fact, the actual rights Patrick Henry offered his life to preserve (“give me liberty or give me death”) and the freedoms Americans fight for around the world when we proclaim that “freedom isn’t free.” My job description is “criminal defense attorney,” but I am propelled every time I go to court to fight for freedom and my fellow citizens’ civil liberties.