Bias CLE 599 to 1
Friday, March 26, 2004
POINT BY POINT RESPONSE IN ROTHENBERG CASE (Part 4)
The Court says:
(page 8) Rothenberg also conceded during oral argument that there are “a vast variety of courses” on the elimination of bias. Nevertheless, Rothenberg argued that the operation of the elimination of bias requirement is unconstitutional because “all the courses have an ideological content” and the presence of any ideological courses or any courses discussing religion is unjustified. Therefore, Rothenberg argues, it would be unconstitutional for our court to punish a lawyer for failing to attend courses on the elimination of bias.
(page 10) Rothenberg has identified courses that he disagrees with based on their titles and descriptive materials, but there are hundreds of courses offered to which he has not voiced any objection and that he could take in order to complete the elimination of bias requirement. Rothenberg conceded in oral argument that there are “a vast variety of courses” on the elimination of bias.
Minnesota Lawyer article (1/12/2004):
Rothenberg did not deny that there was a variety of courses to choose from, but argued that all of the courses are from one end of the ideological spectrum. Pointing to the Federalist Society seminar referenced above, Rothenberg noted that it has been the only explicitly conservative course to receive elimination-of-bias credits and it was “the subject of feverish controversy” before the board.
My notes from oral argument:
• 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."
My amicus brief says:
Two days after September 11, 2001, the CLE Board heard complaints about a previously-held Bias CLE seminar entitled “Bias in the Legal Profession: What Bias?” App. at A-80. The sponsors of the seminar were not invited to nor informed of the meeting. Id. at A-16. In response to the complaints, the CLE Board sought a legal opinion on whether it could revoke Bias CLE credits and passed a resolution aimed at preventing similar courses in the future. Id. at A-81. Even if Respondent were to rescind the September 13, 2001 resolution, the viewpoint discrimination has limited the ideological choices available during a significant portion of Appellant’s reporting period. Moreover, the rule is unconstitutionally vague and grants unfettered discretion to the CLE Board.
