My day-job colleague and Power Line reader Peter Swanson attended the Minnesota Supreme Court hearing in the Elliot Rothenberg case yesterday. Peter filed a friend-of-the-court brief in the case; no one outside the Minnesota court system knows more about the Minnesota Supreme Court’s elimination-of-bias rule than Peter. For access to Peter’s brief and appendix in the case, click here.
Peter has kindly forwarded us his notes on the hearing, in bullet point form organized by topic. Words in quotation marks are verbatim quotes from the hearing; all others are paraphrase. To simplify posting and reading these notes, I am not placing them in quotation marks; Peter’s notes follow the colon:
Rothenberg Is Not A Bigot
· Chief Justice Blatz stated that both Rothenberg and the Court have shared objectives (following Rothenberg’s comments that “bigotry is evil” and that Rothenberg has worked to fight against bigotry in his career).
· Justice Paul Anderson said that Rothenberg was a person of “distinction” in the Minnesota bar and that Rothenberg is “honorable” (in the context that it would be unfortunate for Rothenberg to be placed on involuntary restricted status).
· Justice Gilbert followed Rothenberg’s assertion that Rothenberg was personally committed to the elimination of bias by asking, “Why wouldn’t education be a useful tool in this endeavor?” Rothenberg returned to his point about the offensive ideology of the courses.
· Chief Justice Blatz stated to Assistant Attorney General Ruth Flynn that Rothenberg “doesn’t disagree with the objective, but the means.”
· Justice Paul Anderson began the first question to Attorney Rothenberg with, “Based on your experience with prejudice and bias in society…” and went on to ask whether bias also exists in the legal profession. Rothenberg countered that certainly individual attorneys exhibit bias, but it is not systemic.
Unconstitutional on its face? Or just as administered by the Board of CLE?
· Justice Meyer asked Rothenberg whether he was asserting as his constitutional challenge that the CLE Board had not sufficiently controlled course content.
· Justice Russell Anderson asked Rothenberg whether his position was that there could be no such requirement under any circumstances, or if the present system was flawed. Justice Russell Anderson also asked whether Rothenberg’s problem was with the two credits, or the structure of how it is administered.
· Justice Russell Anderson asked Flynn how she responded to the U.S. Supreme Court case Keller v. State Bar. Flynn responded that it is a balancing of interests and that the intent of the rule was germane to the practice of law, apart from its execution.
Other Course Options for Rothenberg
· Attorney Rothenberg asserted that some of the courses, including the “Rally for Credit” for indicted attorney of alleged terrorists Lynn Stewart, were “breathtakingly awful.” Justice Gilbert asked Rothenberg whether he had been forced to take any of the “breathtakingly awful” courses. Rothenberg responded that he had not taken them in the last reporting period, which was the reason for the hearing today.
· Justice Page asked Rothenberg whether, of the courses available, there was any course that “goes to elimination of bias and not these other ideological issues [that he finds objectionable]?” (During the hearing, Rothenberg did mention the fact that under the rule the courses are not permitted to teach substantive law.)
· Flynn stated that there is no burden on Rothenberg because he would have to pay for 45 credit hours, even without the Elimination of Bias requirement. Flynn also stated that he is not required to take a course with which he disagrees.
· Flynn minimized the First Amendment burden on Rothenberg by saying he need only be a “passive listener” in the course, per the California Elimination of Bias case, Greenberg v. State Bar. Even if “100%” of the course offerings were objectionable to Rothenberg, it is only a passive activity and Rothenberg does not have to espouse a belief. Justice Paul Anderson immediately and firmly asked Flynn how the concept of “passive listener” is “gounded in the law.” Flynn responded that she was relying on Greenberg alone. There was some very brief exploration by the justices of whether the Greenberg court correctly decided the “passive listener” concept.
· Chief Justice Blatz posed a question to Flynn as to the constitutionality of a program where 100% of the course offerings were objectionable to some group of attorneys. Chief Justice Blatz was careful to say that she did not think that the record reflected 80% or 100% of the courses being objectionable, but that if the CLE Board was relying on the fact that there are ideological choices, then it is necessary to look at the content of the courses.
Regulation of Conduct vs. Regulation of Thought
· Justice Page questioned that Rothenberg “talk[ed] a great deal about compelled speech.” Justice Page then read from the rule, which requires attorneys to “identify and eliminate from the legal profession and from the practice of law, biases against persons because of race, gender, economic status….” After reading from the rule, Justice Page stated that the rule goes to “conduct, not to thought” and that “People can think whatever they want.”
· Justice Page asked Flynn whether the state may compel people to “think an ideology that the state espouses.” Flynn responded that the state may not “look at me in my role as a person” in its regulations, but instead in her role as an officer of the court (expanding on her earlier discussion of germaneness and the Keller v. State Bar of California U.S. Supreme Court case).
· In response to a question by Chief Justice Blatz on the potential obligation to provide different ideological choices for lawyers, Flynn asserted that there is a distinction between lobbying (the activity challenged in Keller v. State Bar) and “education.”
Bias in Society Generally, or Specifically in the Legal Profession?
· Justice Paul Anderson read from the CLE Board brief, to the effect that there is bias in society, so there will necessarily be bias in the legal profession. Rothenberg made the comment that there are certainly individual lawyers who exhibit bias, but that there was not systemic bias. Rothenberg also gestured to the court deferentially and said that he hoped there were no judges who were biased.
Historic Injustices, Or Current Bias in the Legal Profession?
· Following Rothenberg’s off-hand comment that he hoped no judges were biased, Justice Paul Anderson read quotes about U.S. Supreme Court Justice McReynolds, his treatment of women, and his anti-Semitism toward Justices Brandeis and Cardozo. Justice Paul Anderson asked Rothenberg whether we should try to eliminate such biases, and whether we are “beyond the point” where Justice McReynolds was. He also asked Rothenberg whether we have “evolved to a point where we no longer have persons who exhibit” such attitudes.
Substantive Law, Or Elimination of Bias?
· Justice Russell Anderson noted that there is a Minnesota Human Rights Act and a “Federal Human [sic] Rights Act.” Justice Russell Anderson asked why this was not a proper subject of legal education, since the legislature deemed it proper to make laws on this subject.
Are The Conservatives Allowed to Present Their Own Course?
· Justice Paul Anderson suggested that “one shoe does not fit all” and that there was an “expansive variety of courses.” Justice Paul Anderson praised the “variety” and “richness” of the course offerings. Justice Anderson stated that he was aware of “one or two” with which Elliot might agree. In fact, Justice Anderson participated in it. [Ed. note: See the concluding paragraphs of “Getting our minds right in Minnesota, part 3.”]
· In speaking about the Federalist Society Course in which he had participated, Justice Paul Anderson stated that, initially, he felt uncomfortable. Justice Anderson said that he ultimately found it to be one of the more valuable educational experiences. Justice Anderson said that the mind “needs to be pushed” and asked Rothenberg rhetorically why it was wrong to be exposed to different points of view. Justice Anderson asserted that there were some who attended the Federalist Society CLE “by mistake” but nonetheless found it to be a worthwhile experience.
· Justice Paul Anderson had a pointed exchange with Rothenberg over the factual issue of whether CLE Board had agreed not to accredit the Federalist Society course in the future [Ed. note: See “Getting our minds right in Minnesota.”] Rothenberg also cited the threats to make ethics complaints against the course participants. Justice Anderson quickly countered with two questions: 1) Was the course approved? 2) Were any ethical complaints taken against the participants? Rothenberg explained that there was a chilling effect. [Ed. note: The facts are complicated. In 1999 and 2001, the CLE board staff granted credit to the “What Bias?” seminar. Following protests against the 2001 offering, the CLE board passed a resolution not to accredit for satisfaction of the elimination-of-bias requirement proposed elimination-of-bias courses that questioned the existence of bias within the judicial system, as did the “What Bias?” course, rather than accepting the axion of its existence planted in the rule and striving to eliminate such bias. The CLE board also passed a resolution to ask the Minnesota Attorney General whether the board had the authority to deny elimination-of-bias credit retroactively to the 2001 “What Bias?” course. A video replay of the 2001 course was granted credit in 2002 not by the staff, but by the full CLE board, which meets only quarterly. The rationale supportint the decision to accredit the video replay was that the CLE board had “grandfathered” the 2001 course. In March 2003, a new live “What Bias” course was submitted for credit. Because the CLE board staff would not make the decision whether to approve the course for elimination-of-bias credit, and the next CLE board meeting was only one week before the class was to commence, the class was postponed until 2004. Despite its resolution not to approve such couses in the future, the CLE board approved the “What Bias” course again for elimination-of-bias credit.]
· Justice Paul Anderson asked Flynn whether the Federalist Society had a “tougher hill to climb” in getting credit. Flynn responded that the board was not looking at ideology, just whether the course satisfied one of the “learning goals” in the rules. When asked specifically whether it was “internal” or “external” [angry members of the bar] forces that caused the added scrutiny on the Federalist Society offering, Flynn replied that it was “some of both.” Flynn said that there were some external objections to the course and that some members of the CLE board members had “echoed that concern.”
· Justice Paul Anderson asked Flynn whether there had been any internal objection to the “rally for credit” for (indicted attorney) Lynnne Stewart. Flynn replied that she did not know.
Hardly A Ringing Endorsement of the Rule
· Flynn responded to a question by Justice Meyer that the Court may feel that the rule needs to be “tweaked.”
· In a discussion with Chief Justice Blatz about the “fallout” from controversial courses like the Federalist Society “What Bias?” course and the Lynne Stewart rally, Flynn addressed the rule itself. Flynn questioned whether the Court wanted to “redefine” the rule to direct what course should receive elimination-of-bias credit.
This Hurts Me More Than It Hurts You
· The final question was for Rothenberg from Justice Paul Anderson. “Assume we disagree with you,” Justice Anderon began. He continued by asking what would be the “remedy” short of involuntary restricted status. Justice Anderson praised Rothenberg as honorable and a person of “distinction” in the Minnesota bar. He also made reference to Martin Luther King, Jr.’s “Letter from a Birmingham Jail,” saying that when you make a principled stand, you accept the consequences.
· Rothenberg responded to Justice Paul Anderson with words to the effect that there was no price tag on Rothenberg’s principles.
BIG TRUNK adds: The First Amendment issues implicated by the Minnesota Supreme Court’s elimination-of-bias rule are explored in an outstanding law review note by Kari M. Dahlin, “Actions Speak Louder Than Thoughts: The Constitutionally Questionable Reach of the Minnesota CLE Elimination of Bias Requirement,” 84 Minn.L.Rev. 1725 (2000).