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.

The Unbearable Lightness Of Gov. Mark Dayton

Why is it some children of enormous inherited wealth react to their condition by inflicting themselves upon the greater public under the misnomer of public service? If quizzed, none of us would recall asking these strange creatures for any assistance that they, by chance, might possess in governing ourselves. No, we're good, thanks.

Were that it was so easy to stop them. Minnesota's misfortune is to have had Mark Dayton insist that his destiny lay in such oppressive public service on our behalf. First he acted out on the national stage as a senator and failed as only such a hot house creature could. After his single term of absolutely no consequence (hint: that's called waste) some of us had hoped he'd do the "I want my own vineyard" bored wealthy thing or perhaps gotten involved in artisanal chocolate production. For those who main goal in life because of wealth is not to feel irrelevant, the possibilities were endless. Could he not have glommed on to Bill & Melinda's feel good social experiments? Surely from among the panoply of useless United Nations programs and causes there was one he could internalize? If it were sheer ego, why not freshen up a salad dressing line with his mug on the bottle and give Paul Newman a run for his money? He could have meetings and everything!

No, not our luck. In what had unavoidable masochistic overtones, Dayton decided he wanted to act out on the state level (again) by insisting he was governor material. That he won the office is no proof whatsoever of that premise and to date his performance is irrefutable evidence of its lack. He jammed his own party by running in the primary and using his own money. Either or both of these conditions usually elicits the loudest of clucking from democrats but, after Dayton beat Tom Emmer by a 8,000 vote whisker, they soon enough fell in line. The governor could be managed, they were told.

Gov. Dayton's first two years have been abysmal. What was it he wanted to do as governor anyway? Wouldn't a house and senate controlled by republicans offer him the perfect opportunity to lead? To show compromise? To get things done as these political types like to pretend they can? If one was a real leader instead of a lost soul looking for external housing to shore up the inner, yes. But a leader is not who Gov. Dayton is and it is not who he will be in the coming two years, either.

Last week the Governor, sounding like a vaguely fascist mandarin, simply insisted without any intellectual depth or sustained engagement that taxes must increase because of his perceived need of all that government must do. His idea of the size & scope of government is not open to discussion. There is no opting out from it because he knows best. What's that called again?

He made his statement at what, until just yesterday, I had been led to believe was simply a speech reported on by the press. Instead, as MinnPost reported the day before (as did the Pioneer Press), it was a University Lecture. MinnPost polished the knob by saying that the title "university lecturer" could be added to Mark Dayton's resume. No, really.

Yet what shocked is that this was a lecture grandly titled: "Minnesota's Future: Challenges and Opportunities" given to the University of Minnesota's Humphrey School of Public Affairs Policy Fellows (there's more intellectual diversity among supporters of Ron Paul by orders of magnitude; the Fellows are the stuff of David Mamet's nightmares). This was a liberal/progressive/left confab with Little Lord Fauntleroy in attendance.

But wait there's more! The event was closed to the public.

Pardon? Is this possible? Is Common Cause Minnesota on it? From whence shall our help come? Surely the event was taped and surely I will get my hands on it. Try making it private. The entire speech and question and answer session should be posted on the Humphrey School's website without delay. This event was not a private function.

Why would the press acquiesce in this? Access? Or just the usual hot dish politics? Both?

I listened to the audio of the Governor's 25 minute speech. It is appallingly bad. To learn only after the fact that it was a university lecture proper for a set of fellows was mind boggling. He spoke from notes as best from what I could tell. Meandering, at times pointless, at others a non-sequitur minefield, his speech revealed that there is serious trouble with our Chief Executive.

Our Governor's visual performance at this public event is what is being deliberately withheld from the public. What an odd thing to say about Minnesota politics.

But if the visual matches the audio, voters may well be in for a shock. Listening to several bizarre passages on the audio, none intrigued me more in wanting the visual as when Gov. Dayton spoke about his family's annual gathering to discuss wealth management. He reminisced about advice concerning the public good from his father and uncles. He's still executing orders from childhood! I wanted to clap my hands together loudly to snap him out of it while listening to this psychological excursion.

MPR and the StarTribune failed to note that this was a resume enhancing "university lecture" before the Humphrey School Policy Fellows with the President of the University of Minnesota in attendance. MinnPost stated that "Some media may attend, but it's not open to the public."

Do you see? People like us are not allowed in. Media, who are liberals by another name, "may attend." In other words, no one here but us squishes and we squishes will report on it. Media criticism can't possibly be this easy in this town, can it? Because I'll become quickly bored.

It's telling that media do not consider themselves the public. Has this ever been said before? Remember, these people think exceptionally highly of themselves and as having a combative posture toward power. What a laugh! In fact, if power flows from their favored party, they are eager to be co-opted and, as their publishing shows, used to advance that party's interests.

The StarTribune reported only that Dayton spoke "at the University of Minnesota." Not untrue and therefore meets the StarTribune's low threshold for accuracy and completeness.

MPR reported that he spoke "to a group" at the University of Minnesota. Also not untrue and apparently reported this way less any MPR listener assume that the Governor was walking around campus talking to himself.

The Pioneer Press was fuller, saying that the Governor gave "a speech at the University of Minnesota's Humphrey School of Public Affairs." Even that, however, was insufficient to convey the importance of the event to its own participants. Minnesota University President Eric Kaler attended the Governor's Lecture to the Humphrey School Policy Fellows. Indeed he should have: it was a very big deal.

"Some media may attend, but it's not open to the public." Remember that phrase.

In his so-called lecture, the Governor proclaimed that the failure to raise taxes would be the death of this country. Failure to raise taxes would be the death of this country. I swear you can hear the sounds of bobble heads on the audiotape. Revenue or death!

How is this relic our Chief Executive? He called raising taxes an acid test of his. Could anyone in the press appreciate how astonishing that truly is?

Not really. The introduction to the story in the Pioneer Press started out: "Count on Minnesota Gov. Mark Dayton to swim against the tide."

Really? That wet a kiss?

The StarTribune wrote that Dayton had come back from a summer of silence "roaring." There's a neutral term. Fact check, please. It also wrote that the Dayton-responsible statewide government shutdown last year was "bruising." Actually, no one noticed the shut down very much (myself I felt filled with more liberty) which led to Dayton's capitulation 20 days later to the republican legislature's budget. But it is "bruising" now because an election is upcoming and that's how democrats want the issue colored. Consider it done!

"Some media may attend, but it's not open to the public."

Dayton is wildly out of touch with the times across this country. Where has he been since 2008 for him to have said that "public investments do create jobs." Is there even a flicker of a brain wave there? They create jobs but the wrong kinds of ones and even then frequently they don't last. Public investment does not equate to economic growth. This fundamental economic principle is exceedingly difficult for liberals to grasp because spending makes them feel like they are doing something. That their policies fail so routinely and disastrously without another thought also keeps liberals from holding themselves to account. Detroit is the physical manifestation of liberalism. Imagine if that city came to the end it has under republican governance. Democrats with a byline, as Rush Limbaugh called the media, would be all over that important story.

Did anyone get the chance to ask Gov. Dayton if he'd chatted up fellow democrat Gov. Andrew Cuomo about his work in New York state? It's an open question whether he'd take Dayton's call but that's another matter altogether. Has our governor heard of reformist democrat governors? We seem to have a leader who is intellectually uncurious about whether anything on the policy side may have changed since he first got into politics just yesterday in 1975. Are his handlers equally thick? Perhaps it's all one encompassing bubble? I hadn't considered that before.

Besides taking money from you in the amounts that he knows best in order to spend it on your own good, Gov. Dayton last week also disassociatively proclaimed he'd like to open trade with Cuba.

What? No, just no Governor. What are you thinking? You're aware you're in 2012, aren't you sir? Minnesota is surrounded by vastly more economically vibrant states. You may have heard of something called a boom (but not a firework so relax) in North Dakota. South Dakota has been siphoning jobs and businesses from Minnesota for decades now. Wisconsin? You know, Gov. Scott Walker who you are so very not?

How does our Governor bring nothing to the table of ideas but stale, failed ones? The laziest of postures are being struck. This begs the question just who are the Governor's current handlers? Who actually is part of the process that informs him as to what he thinks is good governance? We don't really get much coverage of that important and interesting subject. The lecture to the Humphrey School Fellows was just such an opportunity and therefore went largely unreported.

There was, fortunately, a ukulele player on Almanac last week so our media didn't let us down completely.

Eric Ostermeir, blogging at Smart Politics, had a fascinating overview of the dark, strange, paranoid, apocalyptic words the Governor used in his speech. Is this how liberals make themselves feel alive? More alive? Purposeful? (I feel assaulted when that word is used.)

The article is not lengthy but it is extremely observant in distilling Gov. Dayton and his performance last week. To read it click here.  It's almost as if Eric is onto something. Like a story.

It's telling that Gov. Dayton has nothing but exaggeration and the gloomiest of language with which to go into this fall's election. Grounded optimism requires a leader. General "can do" attitude usually works wonders with people. But this strangest of all Minnesota governors has no capacity whatsoever for that which smacks of the positive. To the contrary, his internalized conflicts leave him continuously searching for solutions which he then projects onto us by way of out of touch, top down, diktats whose implementation gives him psychological satisfaction. Of course that last bit was sheer psychoanalysis but wasn't it fun?

The reporting, as it were, suggests that democrats will increasingly use Gov. Dayton as legislative races heat up. I hope they're correct about the upside offsetting the down because this governor is the best reason why the DFL shouldn't get the legislature. Making him your poster child is fine with me. But having Gov. Dayton urge voters to increase taxes by voting democrat may not be the best way to get said votes.

Perhaps democrats didn't notice there's no shortage of issues with which to run against Minnesota republican legislators. But the lemming instinct is strong among progressives; when your ideas are weak continuous mutual reassurance they are strong is essential. What cliff? Forward.

If the Governor wants to make raising taxes the "acid test" of this election, it's an open question whether democrats can deflect that mistaken approach with something more likely to bring them to a majority in either chamber or, God forbid, both. I don't pretend to know the inner workings of the DFL, its legislators or activists and so can't hazard a guess as to which is more likely to win out.

I do know if it's a battle over raising taxes to fund more useless government, republicans will have the upper hand consistently across all legislative races. Why Dayton is channelling Walter Mondale's 1984 convention promise to raise taxes I've no idea.

I do know that it didn't work then and it won't work now.

Twitter & The End Of The Fourth Estate

Twitter has destroyed journalism as we have known it to date in America. The worst mistake anyone in the press or the media or journalism (do those words have sustained meaning today?) could have made in the age of the internet, smart phones and tablets was to have joined yet another new social medium which counterintuitively limited not just your words but your very keystrokes.

The mainstream media was reduced to its essence. The result was its demise.

On Twitter, journolists (shall we let them in on that word?) found themselves in the cyber presence of equally if not demonstratively sharper minds, much, much quicker wit & an ability to marshall facts as readily as the imagination of Bob Woodward. The few good ones from the herd shone. The rest, refusing to admit they were subtantially less special than before going on Twitter, gamely strode on.

Unfortunately, in doing so they brought the scenery down of what was left of the media game. The royal family in the United Kingdom, say what one may, did manage to survive its encounter with the media. Not so the media itself, which must be the definition of meta.

On Twitter, the media were defeated by journalism itself. Not by just the bright activists on both political sides but by the ability for other media from other countries on Twitter to link to a fascinating array of stories about the United States which our own press, as it were, kept from us. Why would they do that?

The question didn't last long and people starved for information instead of rubbish were off and running. It wasn't that these websites weren't online before Twitter; they were. What Twitter does is make the static web dynamic and with its rich content you have something unlike we've ever seen before. I've thought long enough about this to think the media as constituted today is at an end. I can see it from my house in my pajamas you might even say.

Media personalities, reporters and producers on Twitter, at various times and in sometimes quite revealing ways, eventually could not but help let their personalities come through. On the one hand, we were reassured that they were human. On the other, they themselves (take a bow) confirmed every known defect, vanity and shortcoming conservatives had long ago come to believe they possessed.

I'm not really sure if media and liberals on Twitter realize that the conservatives there stand around looking at the wealth of confirmatory evidence, wanting to shake our heads. Because we can't, we use avatars, our own buzzwords (this means you won't know you're being mocked), and hash tags (the pound sign #) which have almost become the exclusive provence of the right.

In hash tags conservatives reign supreme. Hash tag games are our most deadly weapon in this aspect of Twitter and largely for our own, self-congratulatory amusement. Again, some media standouts are in our league. See how the tables have changed?

Information is the name of the game though, no? Yes. Here marginal or clearly erroneous information is corrected quickly and efficiently. There is the speed of light, which we can't experience, and then there's the speed of Twitter, which we can. I recommend you experience it for yourself.

Tonight we're waiting to see what the American media will do with an explosive report from the British newspaper The Independent. From the material there, it seems very likely that Secretary Hillary Clinton was knowingly and grossly deficient in her prime directive as our Secretary of State: to safeguard the lives of her State Department employees. The story can be read by clicking here. This comes, of course, as we learn President Obama did not attend approximately 60% of his daily intelligence briefings.

The point is that much more information is needed and the media have no natural interest in obtaining it. They will be forced to report about their team. It has been a very long time since they did. It's at junctures like this that I recall the attitudes of those going into journalism: high minded if not prideful, certain of their commitment to truth and a belief that life could not inculcate in them sometimes wildly contradictory beliefs and opinions. And, of course, worship of that mythic goddess Objectivity.

What makes this development all the more remarkable is that it is coming at the end of a tumultuous week within Twitter & the media given the sickening and catastrophic murder and violence in Libya and Egypt.

Doesn't everyone know where they were when they learned "our Ambassador" to Libya had been murdered? I believe they do. I know I do. It almost never happens. When it does, that veneer of civilization is thin to the point of disappearing.

Without recapitulating days of back and forth, conservatives on Twitter were astonished to see the instinctive herd mentality of the media form almost immediately upon the news of a dead Ambassador, three more American citizens, and a consulate burned out if not to the ground. Carter! we heard their Borg-like minds shriek in the Twitterverse. We expected the usual apologies for incompetence that they'd automatically provided throughout the Obama administration.

What we could not have known is that in their feral, corrupt panic they'd have the shamelessness to attempt to make their journalistic reason d'etre the blaming and destruction of Mitt Romney. Ambassador Stevens died a horrible death: choking to death in a burning building. Romney put out a statement and the rest is well known: the media liked neither its content nor its timing. Obama condemned the statement before he condemned the violence at the American Embassy in Cairo, Egypt.

Any number of misrepresentations and lies were made by the media in its ongoing attempt to sustain a negative narrative against Romney. But the various narratives kept suffering from factual, ethical cardiopulmonary failure and couldn't be resuscitated. One by one they were cast off. Those for whom the media pretend to write were having none of what they wrote.

On Twitter, for the first time, media encountered a kill zone with them and their biases the kill. It is said that information wants to be free and with Twitter the media were not able to contain all the information before it had been shaped to their desired narrative. I wasn't the only one who saw, in real time, journalists deal with being out journaled. Fascinating, actually. I'm wondering now if it wasn't even anthropological?

Because conservatives were looking for the facts, any errors were quickly remedied. Some facts might be bad news for our side but we wanted them anyway. Yet because the media were now hopelessly propagandizing for President Obama, their narrative held no weight, being made out of their political prejudices and professional, ethical betrayals. Contempt for the media was involuntary.

And for themselves? Media were largely unaware of the fatal damage done. Over four consecutive days, across every platform imaginable, most of this country saw institutions which pride themselves on the enormity of their duty to the public in regard to truth and veracity debase themselves for the most pedestrian of political reasons. Repeatedly. Stupidly. Mindlessly.

Twitter was where all the action took place because it was the unknowing kill zone for media lies. Because lies were, at times, what it became: conservatives watched most of the Fourth Estate lie in the interests of a failed democrat President and say to us they weren't doing what was manifestly the case. We thought we'd seen it all when NBC News deliberately edited audiotape of George Zimmerman to make him look racist because the overwhelmingly white, liberal, guilt-riden media are obsessed with race. If only their attention resulted in racial progress instead of tension. Progressives so dislike progress they make sure it rarely happens.

The story remains to be played out for some time. I'm hardly predicting media vanishes per se. But its encounter with its dishonest, dirty self is one it will not be able to withstand. This post is best seen as a downpayment on a longer essay on this topic.

In the meantime, Twitter, like money, changes everything. Between now and the enormously important election of November 6th, there will be more battles with the media. This week's battles, however, mark a turn from which things can never return.

Everyone tweets and blogs now. Everyone, so it seems, has a smart phone. Everyone's a journalist but Twitter makes it impossible for the old order to endure.

Because when everyone's a journalist, there is, mercifully, no journolism.