Bias CLE 599 to 1
Friday, March 26, 2004
POINT BY POINT RESPONSE IN ROTHENBERG CASE (Part 5)
The Court says:
(page 12) In contrast, the elimination of bias requirement does not force Minnesota lawyers to say “I believe in X” or manifest agreement with anything. It only requires that Minnesota lawyers be passively exposed to certain ideas by attending courses on the elimination of bias in the legal profession and in the practice of law. For this reason, the California Court of Appeals, which appears to be the only other court to have considered a similar issue, held that a California requirement that lawyers attend classes on elimination of bias does not violate the First Amendment.
My amicus brief says:
There is no opportunity for CLE students to avoid the material. In fact, the CLE Board has interpreted CLE Rule 5A(5) to mean that the CLE student "must be focused solely on the learning activity." White, David L. and Corneille, Margaret Fuller, CLE Credit forTeleconference and Webcast Courses, BENCH & BAR, August 2001, at 32. Respondent relies on Greenberg v. State Bar, to trivialize the burden on CLE students attending the courses. 92 Cal. Rptr. 2d 493 (Cal. Ct.. App. 2000). Unlike the instant case, the California Mandatory Continuing Legal Education ("MCLE") Rules challenged in Greenberg allow individual self study to satisfy the Bias CLE requirement. See Cal. MCLE Rule 2.3. The California State Bar also does not have unfettered discretion to approve or disapprove individual courses, as was noted in the initial.proposal to amend the Minnesota CLE Rules. App. at A-43. Finally, the Greenberg court did not defend the Bias CLE courses, which it recognized as being perceived as sometimes “patronizing, condescending and inept." Greenberg, 92 Cal Rptr. at 44. Instead, the court said that it was bound by the California Supreme Court and that Greenberg and the other attorneys would have to seek relief elsewhere.
My notes from oral argument:
• Justice Paul Anderson asked Flynn whether there had been any internal objection to the "rally for credit" for (indicted attorney) Lynne Stewart. Flynn replied that she did not know.
• 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.
•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.
• 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.)
