Volume 41, Issue 2 (2023)

Elder Evictions: Relief Coming 2021

Image Attribution: Glen Stubbe, Star Tribune 

 

By Abigail Hanson, Lead Managing Editor

 

Effective August 2021, Minnesota will have a long overdue safeguard for our state’s seniors: heightened protections from assisted living facilities (ALF) evictions. The Elder Care and Vulnerable Adult Protection Act, passed in 2019, provides for not only procedural eviction protections for ALF residents, but a myriad of other checks and balances that benefit consumers.

One critical aspect of the 2019 Act, is the establishment of a licensure system for ALFs, a basic regulatory standard of which Minnesota is the last in the country to adopt. Currently, Minnesota’s ALFs are registered with the Minnesota Department of Health as Housing with Services (HWS) establishments. Fittingly, ALFs provide both housing and services, the latter of which can include anything from meals and housekeeping, to medication support or assistance with activities such as dressing or bathing.

The popularity of ALFs has skyrocketed in the last two decades, with the number of these facilities roughly tripling since 2000. The prevalence of ALFs is further put into perspective when compared to the number of nursing homes in the state, which total just 361. In 2020, over 50,000 Minnesotans received assisted living services and/or dementia care at HWS facilities. As the popularity of ALFs has increased, these facilities have started to house adults with more serious medical conditions. Nationally, upwards of 50% of ALF residents need help with bathing, dressing, or walking, and 42% suffer from dementia.

Yet, the structure of Minnesota’s HWS laws, the framework under which ALFs have, and currently, exist, fail to recognize the increasing complexities and vulnerabilities within these resident populations. For example, residents’ housing is still governed by basic landlord-tenant law. As such, ALF residents, who may be suffering from dementia or require heightened medical care, are subject to the same notice and eviction proceedings as anyone renting out an apartment. Moreover, ALF residents are susceptible to back-door evictions, which occur when their services are reduced or cut off, forcing them to move out and find a new service provider. This backdoor eviction method has become especially concerning during the COVID-19 pandemic. Minnesota’s eviction moratorium, instituted through executive order, does not foreclose upon the stoppage or reduction of ALF services. Thus, for residents of ALFs—a group whose age alone puts them at increased risk for serious complications from COVID-19—evictions during the pandemic are a real possibility.

 

Elder Care & Vulnerable Adult Protection Act

Codified under chapter 144G, the 2019 Act, whose main provisions become effective August 2021, provides for the licensure and regulation of ALFs. Overarching changes include training and staffing requirements for ALFs, along with the establishment of minimum standards of care for residents. Many statutory provisions increase consumer protections, including the creation of an assisted living bill of rights and required contract disclosures related to a resident’s lease and services plan, now deemed their “assisted living contract.” Building upon these statutory safeguards is section 144G.52, which provides procedural protections for resident terminations (i.e. evictions).

 

Pre-Termination Procedural Protections

Section 144G.52 expands the definition of termination. This simple change is the foundation for resident eviction protections found within the Elder Care Act. When effective in 2021, the definition will afford procedural protections to both the termination of housing and services received by residents in ALFs.

Additionally, termination of either housing or services may only occur under the following circumstances: (1) nonpayment, (2) violation of an assisted living contract (of which a resident needs to be given a chance to cure), or (3) limited situations where a resident has interfered with the health and safety of fellow residents or staff. The narrow bases on which an ALF may terminate a resident’s housing or services reduce opportunities for arbitrary discharges, such as when a facility threatens eviction based upon resident’s reported concerns or complaints.

Significantly, an ALF must schedule a pre-termination meeting with the resident. The meeting’s purpose is to lay out the reasons for the proposed housing or service termination, but also to “identify and offer reasonable accommodations or modifications, interventions, or alternatives to avoid the termination or enable the resident to remain in the facility.” Not only does this offer an opportunity for residents to avoid termination, but this process actively involves additional resident advocates. Legal and designated representatives for the resident, are required by the statute to be invited to the pre-termination meeting. The additional support can help the resident to effectively advocate with ALF administrators.

 

Post-Termination Procedural Protections

If the pre-termination meeting does not result in a path for continued housing or services, the ALF may terminate the resident after providing notice. However, the notice must include information on the resident’s appeal rights, in addition to contact information for the Office of Ombudsman for Long-Term Care and Senior LinkAge Line, vital advocates for older adults in Minnesota. Under current HWS law, residents must go through the stress of eviction proceedings and have no recourse for service terminations; thus, the Elder Care Act’s inclusion of appeal opportunities bolsters residents’ chances for stability.

If a resident chooses not to appeal, or receives an adverse determination upon appeal, the obligations of the ALF do not end. An ALF must prepare a relocation plan and participate in a coordinated move, ensuring the resident has a safe location. Excluded from chapter 144G’s definition of safe locations are “private home[s] where the occupant is unwilling or unable to care for the resident,” homeless shelters, hotels, and motels. The statute goes further, explicitly stating that a “facility may not terminate a resident’s housing or services if the resident will, as the result of the termination, become homeless.”

 

The strengthened pre- and post-termination procedures of the Elder Law Act provide needed protections for Minnesota’s seniors, favoring stability and safety. Required pre-termination meetings with advocates and ALF administrators can prevent the emotional upheaval that forced transitions can cause, specifically for those experiencing dementia. Post-termination coordinated moves may help to curb the sobering increase in homelessness among Minnesota’s older adults. Consumer protections and regulations of ALFs are long overdue in Minnesota, and the changes effective 2021 will be a welcome relief to older adults across the state.

 

 

 

Will Minnesota’s New Automatic Expungement Laws Have an Effect on Federal Sentences?

By Britane Hubbard*

On January 1, 2025, Minnesota’s new automatic expungement statutes will go into effect.[1] Under this new law, the Bureau of Criminal Apprehension will identify eligible people and grant them expungement relief if they qualify.[2] Offenses eligible for expungement range from petty misdemeanors to felonies.[3] The possibility of a new wave of expungements raises many legal questions. One question is whether expungements under the new statutes could change federal prison sentences for those whose state convictions were used in calculating their federal sentence.

            For example, under the United States Sentencing Guidelines (“Guidelines”),[4] points are allocated for each prior sentence of imprisonment that an offender has.[5] These points are then added up to determine a person’s “criminal history category” which corresponds with a sentencing guideline range.[6] The more points a person has the higher the applicable guideline sentencing range.[7] However, the Notes to the Guidelines specifically state that “[c]ertain prior sentences are not counted” such as “a sentence for. . . a conviction that has been expunged.”[8] Additionally, the instructions given for computing criminal history specifically state that “[s]entences for expunged convictions are not counted.”[9]

So, what happens when a Minnesota conviction and sentence that was used to calculate a person’s federal sentence is later expunged? The short answer, at least in the Eighth Circuit is nothing. Typically, if a federal sentence is calculated in part on a prior state conviction which “is later vacated, the defendant may successfully attack his federal sentence.”[10] A person “seeking to challenge their convictions and/or sentence after the conclusion of [their] trial and direct appeals process usually must file a motion to vacate under 28 U.S.C. § 2255.”[11] This has also historically been called a habeas corpus petition.[12]

 Given the Guidelines specific language that expunged sentences should not be counted, a reasonable assumption would be that the federal sentence should be re-calculated without the points derived from the expunged sentence.[13] However, the “Guidelines do not expressly define the term ‘expunged.’”[14] The Eighth Circuit has looked to the Guideline commentary to find that “expunged convictions under [the Guidelines] appear to be those (1) reversed or vacated due to legal errors or later-discovered evidence exonerating the defendant or (2) ruled constitutionally invalid.”[15] Moreover, “federal law, not state law determines whether a prior sentence is counted for criminal history purposes,”[16] which essentially means that “a state’s use of the term ‘expunge’ is not controlling in determining whether a conviction is properly included in calculating a defendant’s criminal history category.”[17] In other words, “the federal question ‘is whether the defendant was previously convicted, not the particulars of how state law later might have, as a matter of grace, permitted that conviction to be excused, satisfied, or otherwise set aside.”[18] The point of this distinction “is that this type of expungement statute limits public access to the records of a defendant’s prior conviction ‘in order to restore his civil rights and give him a new start in the work place and as a citizen,’ but it does not permit him to commit more crimes free of additional punishment based upon his recidivism.”[19]

“[W]hen determining whether a conviction is “expunged” under the Guidelines, “a court must examine the “basis” for the expunction.”[20] This is because generally an “expunction does not alter the legality of the previous conviction and does not signify that the defendant was innocent of the crime to which he pleaded guilty.”[21] Thus, if a “state court sentence[] is modified after [it] was served ‘for reasons unrelated to [defendant’s] innocence or errors of law” [then it] should be counted in calculating his criminal history score under the guidelines.”[22] Consequently, to have an impact on a person’s federal sentence, Minnesota’s new expungement statutes must expunge convictions that were used to enhance their federal sentence and were related to innocence or errors of law.[23]

First, Minn. Stat. §609A.017 deals with cases of mistaken identity, which relates to innocence and errors, because it “means a person was incorrectly identified. . .as a result of misidentification by a witness or law enforcement officer.”[24] Thus, if a state charge is expunged under this provision, it could impact their federal sentence. Second, §609A.035 addresses pardons, which occur “[w]hen the Board of Pardons unanimously agrees to forgive a person convicted of a crime, so that any remaining penalties or punishments are removed and the convicted person is treated as innocent.” However, this type of expungement “does not alter the legality of the previous conviction and does not signify that the defendant was innocent of the crime to which he pleaded guilty.”[25] Consequently, it likely could not be used to alter a federal sentence. Lastly, Minn. Stat. §609A.015 addresses expungements of dismissals, deferred prosecution agreements or diversions, stays of adjudication, and specific enumerated offenses deemed eligible.[26] Dismissals of state charges would typically not be used to calculate a federal sentence because points are only added to a criminal history category under the Guidelines for each “prior sentence of imprisonment” which is defined as “any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense.”[27] The remaining expungements authorized under §609A.015 are the exact types of expungements created “as a matter of grace”[28] to “restore civil rights and give. . .a new start,”[29] which cannot be used to alter a federal sentence. Therefore, Minnesota’s new automatic expungement statutes will have little effect on federal sentences calculated using the expunged conviction.

*Britane Hubbard is a Lead Symposium Editor for JLI

[1]See Chapter 52––S.F.No 2909, 2023 Minn. Laws, §609A.01 (creating section §§609A.015, 609A.017, or 609A.035, under which expungements are automatic).

[2] Id. at Subd. 5.

[3] Id. at Subd. 3(b)(1)-(5)

[4] The Guidelines are promulgated “by the United States Sentencing Commission” U.S.S.G §1a3.1, and “district courts are required to properly calculate and consider the guidelines when sentencing” even though they are now advisory in nature.  U.S.S.G. Ch. ONE, Pt. A, Subpt. 2;  United States v. Booker, 543 U.S. 220, 264 (2005).

[5]  U.S.S.G §4A1.1(a)-(e).

[6] U.S.S.G §4A1.1, Commentary (“The total criminal history points from §4A1.1 determine the criminal history category (I-VI) in the Sentencing Table in Chapter Five, Part A.”).

[7] See U.S.S.G, Chapter 5, Part A, Sentencing Table.

[8] U.S.S.G. §4A1.1,  Comment 1.

[9] U.S.S.G §4A1.2(j).

[10] Hirman v. United States, 613 F.3d 773, 776 (8th Cir. 2010) (agreeing that a defendant can challenge a federal sentence enhancement based on vacated state conviction) (quoting Johnson v. United States, 544 U.S. 295, 302–03, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005) and  Daniels v. United States, 532 U.S. 374, 382, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001).

[11] Michael D. Contino, CONG. RSCH. SERV., LSB10862, Saving Habeas: Section 2255’s Safety Valve 1 (2022), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://crsreports.congress.gov/product/pdf/LSB/LSB10862.

[12] Id. at 2 (describing the historical development of habeas which resulted in the current §2255 which “placed habeas jurisdiction in the sentencing court, allowing federal prisoners as well as courts a more convenient forum for seeking post-conviction relief.”)

[13] See U.S.S.G §4A1.2(j).

[14] United States v. Townsend, 408 F.3d 1020, 1023 (8th Cir. 2005) (citing U.S.S.G. § 4A1.2, cmt. n. 6.).

[15] Id.

[16] Id. at 1024.

[17] Id. (quoting United States v. Hines, 133 F.3d 1360, 1363 (10th Cir.1998)).

[18] United States v. Jepsen, 944 F.3d 1019, 1023 (8th Cir. 2019) (quoting United States v. Dyke, 718 F.3d 1282, 1293 (10th Cir. 2013)).

[19] United States v. Nelson, 589 F.3d 924, 926 (8th Cir. 2009) (citing United States v. Hines, 133 F.3d 1360, 1366 (10th Cir.1998)).

[20] United States v. Townsend, 408 F.3d 1020, 1024 (8th Cir. 2005).

[21] United States v. Jepsen, 944 F.3d 1019, 1023 (8th Cir. 2019) (quoting  Dickerson v. New Banner Inst., Inc., 103 S.Ct. 986, 986 (1983)).

[22] Id. at 1023 (quoting United States v. Martinez-Cortez, 354 F.3d 830, 832-33 (8th Cir.), cert. denied, 543 U.S. 847, 125 S.Ct. 291, 160 L.Ed.2d 76 (2004)).

[23] Id.

[24] Minn. Stat. §609A.017.

[25]  United States v. Jepsen, 944 F.3d 1019, 1023 (8th Cir. 2019) (quoting  Dickerson v. New Banner Inst., Inc., 103 S.Ct. 986, 986 (1983)).

[26] See subdivisions (1)-(3) of  Minn. Stat. §609A.015.

[27]  U.S.S.G §4A1.1;  §4A1.2(a).

[28] United States v. Jepsen, 944 F.3d 1019, 1023 (8th Cir. 2019) (quoting United States v. Dyke, 718 F.3d 1282, 1293 (10th Cir. 2013)).

[29] United States v. Nelson, 589 F.3d 924, 926 (8th Cir. 2009) (citing United States v. Hines, 133 F.3d 1360, 1366 (10th Cir.1998)).

 

Minimum Wage and the Tipping Culture Divide

Annali Cler*

On November 3rd, voters flocked to the polls, and election results gripped the nation for the following week. Although the presidential race captured headlines, another important vote occurred that day. In Florida, voters approved an amendment to the state’s minimum wage. Florida’s minimum wage for non-tipped employees will increase to $15 by 2026, while non-tipped employees will earn $11.98. Not only will this amendment make Florida one of the few states with a $15 minimum wage, but it also boosts Florida’s tipped employees well above the federal minimum cash wage and that of many states. Tipped employees have a unique pay structure, where employers only have to pay $2.13 per hour directly to the employee if that number combined with tips received adds up to the federal minimum hourly wage (or the state required wage). The obvious difference in pay raises questions about the existence of tipping culture and the need for a separate category of employees. 

The little-known history of tipping in the U.S gets its roots from racist practices following the Civil War. In the 1850s, wealthy Americans brought the practice back from Europe. Initially, many Americans opposed tipping, seeing it as an extra expense on top of the cost of food. Attitudes began to shift in the 1860s. After the Civil War, people who were freed from slavery had limited employment options and often turned to sharecropping or service positions, such as servants or porters. Tipping functioned as a way for employers to avoid paying their workers and as a sign of servitude. In 1902, a journalist wrote “[Black workers] take tips, of course; one expects that of them–it is a token of their inferiority.” Low or no wage work therefore continued to exist long after the abolition of slavery.

The development of labor law continued to make distinctions among workers. The Fair Labor Standards Act (FLSA) of 1938 exempted certain occupations from minimum wages. Employers in the agricultural and domestic sectors, jobs largely held by people of color, were not required to pay the federal minimum wage. These exemptions still exist. 

Saru Jayaraman, co-founder and president of Restaurant Opportunities Centers United (ROC United), says “[i]t’s the legacy of slavery that turned the tip in the United States from a bonus or extra on top of a wage . . . to a wage itself.” Tipping as a wage structure perpetuates low valuations on certain kinds of work, particularly service jobs. 

Further, tipped work worsens inequality in several dimensions. Research suggests that white workers receive bigger tips than black workers. Additionally, two-thirds of tipped workers in states that do not mandate full state minimum wage, which encompasses 43 states, are women. Although some argue tipping is a means to incentivize employees to work harder, the high rate of poverty for workers in restaurant industry compared to the general population suggests that tips alone do not provide a living wage, regardless of one’s work ethic.

Florida’s amendment signals acknowledgement by the public that the current federal minimum wages for non-tipped and tipped employees have failed to keep up with the cost of living. An increase in minimum wages across the board would benefit service workers, especially women and people of color, who are over-represented in that sector. Recognizing the inequitable rationales behind the distinction between non-tipped and tipped employees, Florida is moving in the right direction by bringing tipped employees above the federal minimum wage for employees generally.

*J.D. Candidate (2021), University of Minnesota Law School

The Burying of Boumediene v. Bush

Kevin Thomson*

At the University of Minnesota Law School in 2018, Chief Justice John Roberts declared that the court “erred greatly” when it gave into political pressure and upheld the internment of Japanese Americans in the “shameful” decision Korematsu v. United States. The Court is at its best, said the Chief Justice, when it stands athwart political pressure. 

One case unmentioned but nevertheless a viable candidate for the Court at its best is Boumediene v. Bush. 553 U.S. 723 (2008).  In the fog of the War on Terror, the Court held the Suspension Clause applied to Guantanamo Bay and the weak procedures provided by Congress were an inadequate substitute to habeas corpus. The legal philosopher Ronald Dworkin, writing in the pages of the New York Review of Books, declared it “a great victory.” And it was. But now, the Supreme Court and D.C. Circuit have buried the effects of Boumediene, sending a once great victory into the graveyard of constitutional law. This short blog post will outline the key holdings of Boumediene, where they have been undermined and where they survive. 

In 2006, Congress had passed the Detainee Treatment Act (DTA) which provided minimal procedures to Guantanamo detainees in the form Combatant Status Review Tribunals (CSRT), and the Military Commission Act (MCA) which stripped federal courts of habeas jurisdiction. Limited judicial review was granted to the D.C. Circuit, which could review whether the CSRTs complied with procedures promulgated by the Secretary of Defense. The plaintiffs in Boumediene challenged these laws under the Suspension Clause in Article I, Section 2 of the Constitution, which reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

The Boumediene Court addressed the case in two steps. Step 1 asked the threshold question of whether the Suspension Clause extended to Guantanamo Bay. Step 2 asked whether the CSRTs and limited D.C. Circuit review constituted an “adequate substitute” to habeas corpus. The Court answered “Yes” on Step 1 and “No” on Step 2. In doing so, Boumediene left two legacies: a functional approach to extraterritoriality and a robust interpretation of the Suspension Clause. 

The Court, in extending the Suspension Clause to Guantanamo Bay, rejected a formalist interpretation of the Clause’s reach. Justice Kennedy, writing for the majority, applied a functional test, asking, in part, whether the extension of the Suspension Clause would be impracticable and anomalous.” Prior cases had sharply limited the application of the Constitution to the de jure territoriality sovereignty of the United States or to plaintiffs with significant voluntary connections to it. It was under the guidance of these cases that the Bush Administration chose Guantanamo Bay, where the government could be unburdened by constitutional concerns. After all, Guantanamo detainees had no voluntary connections to the United States, and Guantanamo Bay, located in Cuba, was outside the de jure sovereignty of the United States. 

The Boumediene court rejected this manipulation and held the U.S. exercised de facto control over Guantanamo Bay and applying the Suspension Clause to it would not present any practical concerns. The hope was that the “impracticable and anomalous” test would spread beyond the Suspension Clause, and the government could not shed its constitutional duties by traveling abroad. 

This hope was quickly dampened. There are a number of cases to note, but two are warrant special consideration. In Alliance for Open Society, a case seeking to extend the First Amendment abroad, the Court declared: “[I]t is long settled as a matter of American constitutional law that foreign citizens outside U. S. territory do not possess rights under the U.S. Constitution.” 140 S. Ct. 2082, 2086 (2020). This proposition, while not formally overruling Boumediene, revived a formalist, line-drawing approach to extraterritoriality. 

It was in the spirit of Alliance, and not Boumediene, that this past August the D.C. Circuit shut the door on the application of procedural or substantive due process rights for Guantanamo detainees in Al Hela v. Trump. 972 F.3d 120 (2020).  There, the D.C. Circuit, citing Alliance, went out of their way to hold that the Fifth Amendment does not apply at Guantanamo Bay. Without the co-extension of the Due Process Clause, the lasting effect of Boumediene’s strong interpretation of the Suspension Clause is considerably weakened. 

The functional “impracticable and anomalous” test still applies when analyzing the reach of the Suspension Clause. And areas where the U.S. exercises de facto sovereignty – like Guantanamo Bay – are “U.S. territory,” meaning the Alliance rule does not apply. But these are small echoes for such a great case. 

The second key holding of Boumediene was its robust interpretation of the Suspension Clause. Decided in 2020, Department of Homeland Security v. Thuraissigiam is the first case interpreting the Suspension Clause after Boumediene. 140 S. Ct. 1959 (2020). In Thuraissigiam, the Court held that expediated removal procedures limiting judicial review for migrants did not violate the Suspension Clause because the plaintiff – a man seeking asylum – did not seek release but additional procedure. 

There is much to be said about how Thuraissigiam affected Boumediene from its originalism to the misinterpretation of the writ in immigration cases. But one important implication of the case is its conception of the purpose of habeas corpus. 

The interpretation of the history of habeas corpus and the current case law is split between two conceptions of habeas: a rights-centric view and a power-skeptical view. The power-skeptical view focuses an analysis of the Suspension Clause on the jailer – not the jailed. It questions the power of judiciary to review the “legality of the exercise of executive power,” as Justice Sotomayor put it in her dissent. Under this interpretation, the expediated removal procedures are unconstitutional for barring judicial inquiry into the legality of expeditated deportation orders. 

On the other hand, a rights-centric view focuses on the jailed, not the jailer. It looks to the plaintiff’s (lack of) constitutional rights, not the legality of the Executive’s actions. But standing alone, those subject to Executive detention, whether the alleged enemy combatants in Boumediene or recently arrived migrants in Thuraissigiam, are likely to have little claim to constitutional right. A rights-centric Suspension Clause is a weak Suspension Clause.

Boumediene embraced the power-skeptical view. The majority proclaimed: “The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches.” But the Court in Thuraissigiam undermined this power-skeptical view by concentrating solely on the plaintiff’s lack of right instead of the illegality of the Executive’s action. 

Some hope remains for Boumediene. The Boumediene court held “at an absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’” The Court in Thuraissigiam, seizing on an apparent concession in a footnote in the plaintiff’s brief, analyzed the writ only as it existed in 1789. Future plaintiffs may be able to make claims based on post-1789 developments in the Suspension Clause jurisprudence. How the current court will handle those arguments – and whether Boumediene can be resurrected – remains to be seen. 

 

*J.D. Candidate, 2021.