Bias CLE 599 to 1
Friday, March 26, 2004
ROTHENBERG CASE -- POINT BY POINT -- CONTINUED
The Court says:
(page 19) In making this determination, we are mindful of the fact that Rothenberg is a long-time member of the Minnesota bar in good standing and has made good faith arguments in challenging the constitutionality of the elimination of bias requirement. We are also mindful that the Rules of the Minnesota Board of Continuing Legal Education do not provide a method for a lawyer with concerns about the content of continuing legal education courses to challenge these courses and that failing to comply with the requirements and requesting a hearing before the Board was, in this case, a way for Rothenberg to express his concerns.
(footnote 6) The precise number of other courses presented is unclear. Between July 1, 1999 and June 30, 2002, at least 700 courses were presented for at least one hour of elimination of bias credit in Minnesota. Many of these courses were the same or similar, but the number of different courses, based on the evidence presented to us, was at least 150. These courses appear to encompass a broad range of issues, including “Women in Law Firms,” “Working With Immigrant Clients: Cultural and Language Issues,” “Disability in the Law,” and “Understanding the Special Needs of the Elderly/Disabled,” to name just a few.
My amicus brief says:
It is difficult to determine the full range of opinions that are eligible for credit under the Bias CLE Rule. The CLE Board will not give advisory opinions. The only way to determine the eligibility of a particular seminar is to invest the resources in planning, preparing and publicizing the actual seminar. None of the administrative preparation of the seminar would count toward the minimum 45 hour CLE requirement. CLE Rule 7(A). A CLE provider in possession of the videotape and written materials for an approved course by another provider still does not have adequate information to determine the viewpoints that are permitted. The compliance affidavit requires a narrative explaining how the proposed course meets the "learning goals." CLE Rules, Appendix I. These completed affidavits are not generally available to the public, and the CLE Board does not retain them. See App. at A-79. The MSBA CLE division has complained about changing standards for Bias CLE approval. App. at 84. Two otherwise identical courses could receive different accreditation decisions based on different compliance affidavits. Even if it is possible to determine the eligibility for one course, there are still questions about other courses representing other ideologies. Determining the meaning of the rule is like the old television game show, Concentration. In Concentration, correct answers to questions removed small squares revealing a larger puzzle underneath. Even with a specific answer to whether a specific course is eligible for Bias CLE credit, it is not possible to solve the overall puzzle about the meaning of the rule. Respondent presents a lengthy list of accredited course titles in support of its contention that there are significant numbers of non-ideological Bias CLE offerings. Board Counsel Exhibit I. Appellant correctly points out that the titles alone often give little indication of the ideological content. Brief of Appellant at 11. If Respondent contends that the rule is clearly defined, and that course titles are sufficient to ascertain content, then a brief course description should be sufficient to determine potential accreditation. The CLE Board has been given various brief descriptions of courses and asked whether they would qualify for Bias CLE credit. App. at A-67, A-75, A-82. To date, the CLE Board has not answered the questions..If Respondent is unable to give a specific credit determination on the examples provided, then Respondent should advise how a CLE provider would go about fashioning such a course in order earn Bias CLE credit.
