Media Must Intervene In Brodkorb Lawsuit

On Friday, June 6th, United States Federal Magistrate for the District of Minnesota, the Honorable Arthur Boylan, issued a protective order in the Michael Brodkorb v. Minnesota Senate lawsuit addressing how sensitive information and material should be treated now that discovery is set to proceed in earnest. For Brodkorb, getting to the heart of his gender discrimination claim has been a long time coming. Unfortunately for him, the protective order effectively renders his federal lawsuit invisible to the public. Worse, though, than one private litigant's discomfort, the protective order keeps the people of Minnesota from knowing how their elected officials handled this by now very public matter.

The reason for this is that the protective order breathtakingly allows one party to designate "confidential" anything they see fit. The only remedy to this egregious grant of discretion is for the other party to file a motion and hash it out before the Magistrate. This is called motion practice and it isn't cheap. Typically protective orders delineate those things that can reasonably be anticipated to be confidential as such, with provisions for one party to assert confidentiality as to others but with the burden of proof on that party.

The current protective order places no burden of proof, as an initial matter, on the party claiming confidentiality but, rather, allows it carte blanche and shifts the burden to the objecting party. In the posture of the current lawsuit, Brodkorb is tasked with fighting every disingenuous designation of "confidentiality" that Minnesota Senate lawyers will make, whether or not that strictly would be helpful to his case. This is grossly unfair but more to the public than to Brodkorb, as unfair as that is.

For a glimpse into the mindset of Senate counsel, hired unilaterally by the profoundly stupid then Secretary of the Senate Cal Ludeman, look at what $330 an hour attorney Dayle Nolan had to say about the protective order: "The press coverage has been fast but fact-free, and would support the idea that a protective order would be making the litigation be more normal litigation." Stupid squared.

The usual disclosures: I'm friends with Brodkorb and am an attorney, though I do not represent him in his federal lawsuit. Amy Koch is my client and friend as well. All this has been public record for some time but bears repeating for those readers of this post who may not know it. If I'm going to blog about transparency, I should try to embody it.

Put another way, the protective order keeps from, at least as an initial matter, the Minnesota public what both republican and democrat senators did in this matter. What possible public policy good could be advanced by such onerous provisions? Both the attorneys defending the lawsuit, as well as the Senate itself, are funded by the taxpayers. It seems the Magistrate gave the public no shrift, let alone short, in his decision making process. This is error.

Brodkorb has from the first moment of his lawsuit stated publicly and repeatedly that the names of the other relationships of which he is aware ought not and should not be become public during the discovery process. I understand he and his lawyers readily agreed to keep such information confidential. For anyone to suggest otherwise is dishonest and malicious.

No, the problem here is what is called in law "over breadth." Some confidentiality should obtain in this lawsuit. The problem is that what the Magistrate has ordered keeps from the public information legitimately in the public domain.

As one friend put it: "I think I'm entitled to know what Senator Senjem said to Senator Michel about this matter." Quite right. But the current protective order allows the senate to slap "confidential" on that discussion and leaves it to a private litigant with necessarily limited financial resources to strip that label from the information. I'd even put it another way: I'm entitled to know what Sen. Bakk has said to others about this lawsuit, including political calculations not covered by the attorney client privilege. I've always thought Senator Bakk should settle this lawsuit and hang it around Senator Hann's neck. But that's just lovable me.

Now then to the point: Minnesota media should intervene in this lawsuit for the sole purpose of challenging a shockingly over broad protective order. I'd feel the same way if the litigant was a democrat suing what was then a DFL controlled senate. Why do I suggest this?

Because the press, traditionally, has thought of itself as a safe keeper of the public's right to know. If I can put aside my cynicism on this point for a moment, you can too. That media in our age have become an arm of the Democratic Party should not prevent Minnesota media from doing their job in this instance. Whether bloggers would have standing to intervene is an interesting question. Maybe Powerline would like to become relevant again and explore that possibility.

The question is straightforward: why should the operations of the Minnesota Senate be exempt from public scrutiny in a public lawsuit? They should not. We simply can't depend on the meager resources of Brodkorb and his attorneys to vindicate this important point. Those are not his fish to fry, not why he filed his lawsuit. That point has, however, become directly implicated in his lawsuit.

Brodkorb's attorneys must file an appeal to the federal judge assigned to this matter, the Honorable Susan Nelson. At that point attorneys for any number of media outlets should seek permission to intervene in support of making the protective order less onerous, less broad, less an affront to those of the governed. If traditional media do not do so, I'm happy to gather a number of pro bono attorneys and solicit Aaron Rupar & City Pages to intervene. It would hardly be the first time they showed up local media. No matter how it happens, media must intervene.

It's showtime, folks.

What I Saw At The Minn Post Roast

Last Friday evening I attended the MinnPost Roast 2013 as the guest of former republican Senate Majority Leader Amy Koch. Koch is both a friend as well as a client. She was one of several individual and ensemble acts that performed throughout the night. As republicans there was something of the "in the belly of the beast" feel to the evening but nothing that wasn't able to be surmounted by good will and a sense of humor. The evening couldn't have been better if I had learned Israel bombed Iran.

Koch had humor in spades. Going onstage relatively early at the Pantages Theater in downtown Minneapolis, she was effortlessly unselfconscious and completely hilarious. People might say I'm not objective about this because we are friends but I have many friends about which I've remained objective, including in a public way on this blog. Koch, as I tweeted that night, brought down the house with her funny, perfectly pitched routine which she wrote herself. She alone out of everyone who appeared onstage that night did so without notes. People know when they are in the presence of a natural and last Friday night the elite of the DFL knew it as well, many not for the first time. I consciously but at times with difficulty pushed away thoughts of "what if" and stayed in the moment.

Other DFL politicians and activists performed and I found myself smiling at them and otherwise having something of an out of body experience. Sen. Franken was but two seats away; he was oddly flat onstage and tethered to notecards he seemed to be racing to get through. I did manage to get a nice picture of him & Koch, though. Sen. Klobuchar was quite self-deprecating to my mind but I know her personally not at all. Minneapolis mayor R.T. Rybak performed well as did St. Paul mayor Chris Coleman, each with their very different demeanors but both being themselves and enjoying it. Governor Mark Dayton came on toward the end of the show, together with his press spokesman Katie Tinucci and did a perfectly adequate job of speaking a few lines while Tinucci essentially performed--quite well--a one woman show.

The after party at the Chambers Hotel was equally fun, giving us more time to visit with the loyal opposition. We happened upon Tom Horner and Jim Graves which proved amusing in an altogether different way than the stage show. Graves took a sudden, strong interest in me when I located myself in the political firmament by saying I was Andy Parrish's attorney. He asked to have lunch, instantly pressing his card into my hand. I look forward to it but am wistful about what is surely a downward slide in my fortunes: trafficking in Andy Parrish's reputation. On the upside, if you can't have good food at lunch with Jim Graves you can't have it anywhere in the Twin Cities.

We also had an opportunity to visit with former Sen. Ember Reichgott, a frequent commentator on local Twin Cities political news shows. She was as pleasant and nice in person as she appears to be on tv and radio. In passing she expressed admiration for Brian McClung recently coming out in support of same sex marriage and termed it courageous. She was fascinated when I said I didn't think taking such a position now involved much courage. Other republicans had done so when it was risky--Jake Loesch is probably the best example--and then, some time after, came Sen. Branden Pederson and Pat Anderson. I said taking a position in favor of traditional marriage was now the courageous thing, given the shower of praise from media any given republican receives for supporting same sex marriage. She believed me, believed I was serious in my observation but was struck nonetheless.

What must Reichgott think of my party, I wondered after our discussion ended, moving further amidst the beautiful people dressed mostly in black? Is it all Torquemada all the time? Does she think there's a certain suffocating orthodoxy imposed and from which deviations are acutely punished? We all understand the stereotypes of both major parties. What was striking to me was that as sophisticated an observer of the scene as Reichgott was surprised by a not particularly surprising revelation of how things actually are in the Minnesota Republican Party. How off base, then, am I and many others about the DFL? Maybe we need to get out more together? Within reason, naturally.

We don't, though, and there's the problem. Republicans are routinely sought for the Minn Post Roast and its organizers have great difficulty finding any. Yes, Minn Post is filled with a lot of retired Star Tribune and Pioneer Press employees but our absence isn't going to do anything to help them think about issues (or republicans) somewhat differently. Schmoozing isn't going to change policy positions; it might help us understand each other better and on our own terms, the best kind of understanding.

I thought the same thing when the week prior I attended the Minneapolis-St. Paul International Film Festival to watch Mira Nair's movie adaptation of the well regarded book by Mohsin Hamid "The Reluctant Fundamentalist." Screen after screen of sponsors were shown before the movie began. Not one of them was remotely conservative. What, the Freedom Club couldn't have sent $500 to get a spot?
It's not that hard; the bar is very low. Still we republicans fail.

The point is that by ceding so many fields we play on very few and increasingly just to ourselves. Democrats do that to some extent but to the degree the larger cultural arena is friendly to them (if not owned outright) our absence becomes a self-fulfilling prophecy of increasing marginalization.

Minn Post deserves congratulations on putting together a splendid evening of fun and enjoyment. Perhaps next year, instead of one talented, brave, and delightful republican on stage, we could provide several. Doing so would surprise both sides of the aisle.