American Lutheran Church (ALC)

Minnesota Legislature’s Daily Prayer

Rule 1.01 of the Minnesota House of Representatives for the Convening of the House provides, “The call to order is followed by a prayer by the Chaplain or time for a brief meditation, then by the pledge of allegiance to the flag of the United States of America, and then by a call of the roll of members.” (Emphasis added.)[1]

Journalist Jennifer Brooks tells us, “In the middle of a pandemic, when the crowds at the State Capitol are at a bare minimum, it falls to the lawmakers themselves to open each session with a few good words in these bad times.”[2]

In early April 2020, Representative Pat Garofalo (Rep.) was the substitute chaplain who said the prayer should be “a time for some patience, for unity and most importantly for hope” and that he wanted it to be “a meaningful message that the people of Minnesota could respect, but would have particular relevance to House staff and House members.” Therefore, he chose the following passage from the New Testament of the Bible (1 Peter 3: 13-17):

“Who is going to harm you if you are eager to do good? But even if you should suffer for what is right, you are blessed. Do not fear their threat, do not be frightened.” But in your hearts revere Christ as Lord. Always be prepared to give an answer to everyone who asks you to give the reason for the hope that you have. But do this with gentleness and respect, keeping a clear conscience, so that those who speak maliciously against your good behavior in Christ may be ashamed of their slander. For it is better, if it is God’s will, to suffer for doing good than for doing evil.”

On April 28, 2020, the opening prayer was provided by House Majority Leader Ryan Winkler (DFL), who used what he said was his favorite prayer, the Lutheran Prayer of Good Courage, because it “gives us faith to go out with good courage, not knowing where we go, but only that your hand is leading us and your love supporting us.” Here is that prayer:

“Lord God,
you have called your servants
to ventures of which we cannot see the ending,
by paths as yet untrodden,
through perils unknown.
Give us faith to go out with good courage,
not knowing where we go,
but only that your hand is leading us
and your love supporting us;
through Jesus Christ our Lord. Amen.”

This same prayer was given on May 16, 2010, the final day of that session, by the House Chaplain, Rev. Dennis J. Johnson of the Evangelical Lutheran Church in America (ELCA), who placed it in a broader context as follows:[3]

“In my experience, all prayers seem to come down to two simple petitions”
“ Lord have mercy covers all the sins, disappointments, failures, mistakes, what we did not get done, and stubbornness or hardness of hearts or posturing that contribute to stalemates. Yes, Lord, have mercy. Thanks be to God for that mercy which brings second chances and new beginnings.” (Emphasis added.)
“Thanks be to God is a petition that covers all that went right during this session, that acknowledges successes and the hope we have in what seems like setbacks, hope for seeds that were planted, ideas that may yet come to fruition, laws that may yet be improved, the hope for tomorrow. Thanks be to God for partnerships forged, transcendent moments when the good of the people triumphs over partisanship. Thanks be to God for all who are willing to put in the long hours, endure the critics and do the heavy lifting , and to participate in this messy but necessary and godly process of democracy. Yes, thanks be to God.” (Emphasis added.)
Now, Lord God, you have called your servants to ventures of which we cannot see the ending, by paths as yet untrodden, through perils unknown. Give use faith to go out with good courage, not knowing where we go, but only that your hand is leading us and your love supporting us.” (Emphasis added.)

This prayer was published in The Lutheran Book of Worship, which was produced by the Inter-Lutheran Commission on Worship, a collaboration of the Lutheran Church in America, the American Lutheran Church and the Evangelical Lutheran Church of Canada that was started by the Lutheran Church—Missouri Synod, which left the collaboration just before publication of this book.[4]

Rev. Johnson reports that this prayer previously was written by Eric Milner-White, an English Anglican priest (1884-1963), who was Dean of Chapel at King’s College, Cambridge University (1918-1941) and the creator of its now world famous “A Festival of Nine Lessons and Carols.”[5]

Rev. Johnson was the House Chaplain, 2009-10, and his book, cited below, provides a history of that chaplaincy, including a list of the chaplains, 1849-1857 (Territorial Sessions) and 1857-2011 (State Sessions) along with an overview of issues of church and state, personal reflections on the roles and a compilation of prayers he (and guest chaplains) had offered in 2009-10. He spent a combined 21 years in parish ministry in Dallas, Texas and St. Peter, Minnesota. He also served as a vice president of Gustavus Adolphus College, St. Peter, and one year as its interim president (2002-2003). After his retirement, he was an associate to the bishop of the Minneapolis Area Synod of the ELCA, which he joined on January 1, 1988, when the Lutheran Church in America joined the American Lutheran Church and the Association of Evangelical Lutheran Churches to create the ELCA and more recently (2015-17) was Interim Senior Pastor at Minneapolis’ Mount Olivet Lutheran Church. I am proud to say he is a friend of mine. https://en.wikipedia.org/wiki/Evangelical_Lutheran_Church_in_America

An earlier House Chaplain (1993-94) was Rev. Dr. Donald M. Meisel, then Senior Pastor at Minneapolis’ Westminster Presbyterian Church, which is this blogger’s church.

Reflection

The Prayer of Good Courage is instructive to us all. We all are God’s servants, and we all ”are called to ventures” even though “we cannot see the ending “ and even though they lead us on “paths as yet untrodden” and even though they lead us “through perils unknown.” Too often we forget these basic truths when we embark on new ventures.

Therefore, we also should not forget that we need to embark on these new ventures “with good courage” and with faith that God’s “hand is leading us” and “God’s love [is] supporting us.” This “good courage” includes humility to recognize that we may not have correctly analyzed the situation. We need to listen to others and try to learn from their opinions. We need to be able to admit that we were wrong.

==============================

[1] Rule 1.01 of the Temporary Rules of the [Minnesota] House of Representatives] 2019-2020. Surprisingly the Minnesota Senate apparently does not have a similar rule. (Temporary Rules of the [Minnesota] Senate, 91^st Legislature (2019-2020). A special comment is invited for identification of the Minnesota Senate’s rule or practice for a chaplain.

[2] Brooks, In a Minnesota Legislature on lockdown, State Capitol gets used to a new normal, StarTribune (May 1, 2020).

[3] Johnson, Chaplain of the House: A Ministry of Prayer and Presence in the Minnesota House of Representatives at 78-79 (Hennepin House 2011).

[4] The Lutheran Book of Worship at 153 (1978); Lutheran Book of Worship, Wikipedia.

[5] Milner-White, O God you have called your servants, DAILY PRAYER edited by Eric Milner-White & G. W. Briggs (1941).

My Call Stories

Here are my call stories in response to Rev. Tim Hart-Andersen’s sermon,“What Is Your Call Story?,” which was the subject of a prior post.

The sermon drew from the Bible’s account of Isaiah receiving a direct call from God and Zacchae’us having one from Jesus. I never had such a direct call and doubt that I ever will. Instead, as will be discussed, I have responded to various requests by friends and colleagues to do something that upon reflection were calls to service. Such requests often can lead to personal reflection and conversations with pastors and friends to discern whether there has been a call and what your response should be.

The title of the sermon suggests that each of us only has one call story. Yet I have had multiple calls to service and believe that is or should be a common experience. After all the sermon mentions the pastor’s father, Rev. Dr. Henry William Andersen, who had a strong calling to Presbyterian ministry, but upon his retirement from that ministry was perplexed for a while before he discovered a calling to retire and be a friend and counselor to other retired people.

In other words, vocation “implies a dedication to a certain kind of work or service over a period of time. A one-time effort probably does not count. On the other hand, . . . vocation does not necessarily require a lifetime commitment to doing a certain thing. Indeed, an individual’s circumstances change over time and what was a vocation for one period of life may not be appropriate for other period. Thus, an individual may have several vocations over time, some of which might be simultaneous.” [1]

Before I joined Westminster in 1981 I had no religious calls to service.

My Calls to Service

Church Leadership [2]

Shortly after I joined the church, I was asked to be an elder of the church. At the time I was surprised that the church wanted someone to serve in that capacity with such limited experience in the church, but I said “Yes” and now regard that as a call to service. This led to service on various church committees—Spiritual Growth, Evangelism and Global Partnerships, the last of which I chaired for ten years. In the process I learned a lot about these different programs and helped shape their missions.

This call was expanded by an invitation I accepted to join the Board of Trustees of United Theological Seminary of the Twin Cities, an ecumenical Protestant institution, which I served, 1988-1998.

The Sanctuary Movement Lawsuit [3]

While serving as a church leader, I struggled with how I could integrate my new religious faith with an active legal practice as a corporate litigator.

The answer to that struggle emerged in 1985, when the senior partner at my law firm asked me to provide legal advice to a firm client and his church, the American Lutheran Church (ALC), which was headquartered in Minneapolis and since merged into the Evangelical Lutheran Church in America (ELCA). The problem was to help ALC decide what it should do in response to the U.S. Government’s disclosure in a criminal case in Arizona that the Immigration and Naturalization Service (INS and now the (Immigration and Customs Enforcement Agency (ICE)) had sent undercover agents into worship services and Bible study meetings in ALC and Presbyterian churches in Arizona that were involved in the Sanctuary Movement.

The result was the ALC joined my denomination—Presbyterian Church U.S.A.—in suing the U.S. Government in federal court in Arizona over what we called “spies in the churches.” In preparation for that case, I had a trip to Phoenix to meet religious leaders involved in the Movement, including Rev. John Fife of Southside Presbyterian Church in Tucson, who in 1986 was convicted of harboring and transporting illegal aliens and served five years probation before being elected Moderator (the national leader) of my denomination.

The courtroom work in this case was handed by two excellent lawyers—Peter Baird and Janet Napolitano of the Phoenix firm of Lewis and Roca (n/k/a Lewis Roca Rothgerber Christie)—and after a Ninth Circuit reversal of a judgment for the Government, the court in Arizona granted a declaratory judgment that the U.S. Constitution’s “freedom of religion” Claus of the First Amendment protected churches from unreasonable investigations. (Napolitano, of course, later became U.S. Attorney for the District of Arizona, the state’s Attorney General and Governor and Secretary of the U.S. Department of Homeland Security and now is the President of the University of California.)

Thus, I came to understand that my senior partner’s asking me to provide legal services to the ALC was a call to religious service.

Becoming a Pro Bono Asylum Lawyer [4]

Moreover, at the start of the Sanctuary Movement case, I knew very little about the Sanctuary Movement or refugee and asylum law or what had been going on in Central America. This led to my leaning about this area of the law through a refugee and asylum training program from Minnesota Advocates for Human rights (n/k/a Advocates for Human Rights) and then volunteering to be a pro bono (no fee) attorney for an asylum applicant from El Salvador. Simultaneously I engaged in research about the Sanctuary Movement and about what had been happening in that country. I then tried the case with an experienced immigration attorney in the Immigration Court in Minneapolis. As was typical at the time, we lost the case, but immediately filed an appeal to the Board of Immigration Appeals in Washington, D.C., which enabled our client to remain in the U.S. with a work permit.

My Pilgrimage to El Salvador [5]

In 1988 I volunteered to handle another Salvadoran asylum case, which was more complicated. As a result, I decided to go to that country in April 1989 with a group from the Washington, D.C. Synod of the ALC through the auspices of the Center for Global Education of Augsburg University of Minneapolis. My purpose was to conduct investigations for this new case and learn more about the country and those objectives were accomplished.

The day we arrived, the Salvadoran Attorney General was assassinated with a car bomb. This produced an intensely tense and dangerous time in the country with her security forces with their automatic rifles stationed throughout the capitol.

Unexpectedly this trip turned out to be the most intense religious experience of my life and a major call to faith and service.

I started to learn more about Archbishop Oscar Romero, who was assassinated while saying mass on March 24, 1980, because of his outspoken criticism of his government’s human rights violations. My group visited the beautiful, modern chapel on the grounds of a cancer hospital where he was killed. Across the street was his small apartment. No fancy archbishop’s palace for him. Another stop was at the capitol city’s Cathedral, which was still unfinished due to Romero’s refusal to spend money on the building while so many Salvadorans were being killed and persecuted. His tomb then in one of the transepts was very plain and covered with photographs of people and their written prayers. There were scraps of linoleum on the floor and plain wooden benches for worshippers. On the outdoor steps to the Cathedral women from COMADRES (Committee of Mothers of the Disappeared and Assassinated) with bullhorns were screaming protests against the latest round of repression by the government. Tears filled my eyes as the words of the Holy Communion or Eucharist echoed in my mind: “My body broken for you.” As a result, Romero became a self-appointed saint for this Protestant believer and I was overjoyed in October 2018 when the Roman Catholic Church canonized Romero as Saint Romero. [6]

Of the many other searing events of my week in El Salvador, another stands out. At the small Lutheran Church of El Salvador, we met an attorney, Salvador Ibarra, who was the one-person human rights office of the church. He spoke of his joy in his work even though such service put his own life at risk and thereby was calling me to continued work as a pro bono asylum lawyer.

Additional Pro Bono Asylum Work [7]

I accepted that call upon my return to the security and comforts of my office in a large law firm in downtown Minneapolis. I helped my second Salvadoran client to obtain asylum.

Thereafter until my retirement from the law firm in 2001, I was such an attorney for other Salvadorans, a young man from Afghanistan, two Somali men, a Burmese man, a young woman from Colombia and a Colombian family, all of whom obtained asylum and at least some of whom are now U.S. citizens.

Teaching International Human Rights Law [8]

In the Fall of 2001, after retiring from the practice of law, I audited the international human rights law course at the University of Minnesota Law School, which was taught by friends, Professors David Weissbrodt and Barbara Frey and by Professor Fionnuala Ní Aoláin, who became another friend. Thereafter David extended a surprise invitation to me to help them teach the course in the future. I accepted that invitation or call, and from 2002 through 2010 I was an Adjunct Professor at the UM where I taught the chapters on refugee and asylum law and U.S. federal court litigation over foreign human rights violations. Along the way I also learned a lot more about other aspects of this large area of law. I am grateful for this call.

Blogging About Law, Politics, Religion and History [9]

One of the reasons I had another retirement (this from teaching) was to research and write about law, politics, religion and history and stumbled onto blogging as a way to do just that. As a result, in April 2011 I started this blog.

My writing about religion has concentrated on the life and witness of Minneapolis’ Westminster Presbyterian Church. I have been enriched by reading the Biblical texts and sermons and then thinking and writing about them. I have come to see this as my way of doing evangelism by demonstrating how an intelligent person can have a religious, spiritual life, something I did not believe possible during my 24 years of religious and spiritual nothingness before I joined Westminster in 1981.

Another major subject of my blog is promoting U.S.-Cuba reconciliation, which grew out of my work on Westminster’s partnership with a Presbyterian-Reformed congregation in the City of Matanzas, Cuba, making three mission trips to the island and welcoming Cuban visitors to my church and city.

Thus, I have come to see blogging as another call that I have accepted.

Conclusion

I concur with Rev. Hart-Andersen when he said in his sermon, “ Christian vocation is less about a particular job and more about how we approach that job, less with what career we choose and more about the underlying purpose we sense in our lives and how that purpose manifests itself in whatever we do. . . . Being called to follow Jesus is a way of life, a pilgrimage on which we embark together.”

Or as noted Presbyterian pastor and author, Frederick Buechner said, a calling is “work I need most to do and what the world needs most to have done. The place God calls you to is the place where your deep gladness and the world’s deep hunger meet.” [10]

I am eternally grateful to have received, and accepted, these calls to service. My life has been enriched!

==========================

[1] My General Thoughts on Vocation, dwkcommentaries.com (Feb. 6, 2014).

[2] Minneapolis’ Westminster Presbyterian Church, dwkcommentaries.com (April 6, 2011); My Vocations, dwkcommentaries.com (Feb. 23, 2014),

[3] The Sanctuary Movement Case, dwkcommentaries.com (May 22, 2011)

[4] Becoming a Pro Bono Asylum Lawyer, dwkcommentareis.com (May 24, 2011).

[5] My Pilgrimage to El Salvador, April 1989, dwkcommentariess.com (May 25, 2011); Inspiration of a Christian Lawyer by the Martyred Jesuit Priests of El Salvador, dwkcommentaries.com (Dec. 14, 2014); posts listed in the “Archbishop Oscar Romero “ section of List of Posts to dwkcommentaries—-Topical: RELIGION.

[6] The Canonization of Oscar Romero, dwkcommentaries.com (Oct. 15, 2018).

[7] See n. 4.

[8] Auditing the International Human Rights Law Course, dwkcommentaries.com (June 30, 2011); Teaching the International Human Rights Law Course, dwkcommentareis.com (July 1, 2011).

[9] The Joy of Blogging, dwkcommentaries.com; List of Posts to dwkcommentaries—Topical: RELIGION.

[10] My General Thoughts on Vocation, dwkcommentaries.com (Feb. 6, 2014).

My Vocations

The words and music about vocation at the January 26^th and February 9^th worship services at Minneapolis’ Westminster Presbyterian Church have inspired my general thoughts about vocation set forth in a prior post. Now I reflect on my own vocations.

Until I was in my early 40’s, I had no religious beliefs after high school and no sense of vocation.

That started to change in 1981 when I joined Westminster and embraced what I now see as my first vocation: serving the church as a ruling elder (1985-1991) and over time as an active member of several of its committees (Spiritual Growth, Communications and Global Partnerships). More recently I joined its Global Choir. After all, a new member covenants to find “a definite place of usefulness” in the church.

For 10 years (2003-2013) I served as chair of Global Partnerships, which supervises the church’s partnerships with churches and other organizations in Cuba, Cameroon, Palestine and for a time in Brazil. This lead to my going on three mission trips to Cuba, one to Cameroon and another to Brazil. As a result, I established personal friendships with people in those countries as part of our collective, and my personal, vocation of being present with our brothers and sisters in other parts of the world and standing in solidarity with them. I also learned about the history, culture and current issues of those countries. This in turn lead to a strong interest in promoting reconciliation between the U.S. and Cuba and Cuban religious freedom, and as a U.S. citizen I have endeavored to do just that.

This sense of religious institutional vocation also encompassed my serving on the Board of Trustees of United Theological Seminary of the Twin Cities for another 10-year period (1988-1998). In my small way, I helped nurture future ministers of the church. In the process I got to know interesting members of the faculty, administration and board and about the life of U.S. seminaries.

I, however, initially struggled with how to integrate my newly reclaimed religious beliefs and my life as a practicing lawyer, and over the years found ways to share this struggle with others, especially with my fellow lawyers.

One way I discovered a vocation in the practice of law resulted from experiencing the bitterness and lack of reconciliation between opposing parties in litigation and, too often, as well between their lawyers, including myself. This experience lead in the late 1980’s through the 1990’s to a personal interest in, and writing and speaking about, alternative dispute resolution (ADR), one of whose objectives is resolution of such disputes more amicably, and to my active participation in the ADR Section of the Minnesota State Bar Association.

Another and more powerful vocation involving my professional life emerged when a senior partner of my law firm in the mid-1980’s asked me to provide legal counsel to the firm’s client, the American Lutheran Church (“ALC” and now the Evangelical Lutheran Church in America). The problem: how should the ALC respond to information that the U.S. immigration agency (INS) had sent undercover agents into worship services and Bible-study meetings at ALC and Presbyterian churches in Arizona that provided sanctuary or safe places to Salvadorans and Guatemalans fleeing their civil wars.

The conclusion of this engagement was the ALC and the Presbyterian Church (USA)—my own denomination—jointly suing the U.S. government to challenge the constitutionality of such spying. Eventually the U.S. district court in Arizona held that the U.S. Constitution’s First Amendment “free exercise” of religion clause protected churches from unreasonable government investigations.

U.S. immigration law was in the background of this case, but I did not know anything about that law. I, therefore, sought to remedy that deficiency by taking a training course in asylum law from the Minnesota-based Advocates for Human Rights.

I then volunteered to be a pro bono lawyer for a Salvadoran seeking asylum in the U.S. because of his claim to a well-founded fear of persecution in his home country because of his political opinions and actions opposing its government. Again, my initial motivation for this action was to be a better lawyer for the ALC.

I discovered, however, that being a pro bono asylum lawyer was my passionate vocation while I was still practicing law and continued doing so until I retired from the practice in the summer of 2001. In addition to El Salvador, my other clients came from Somalia, Afghanistan, Burma and Colombia. I was able to assist them in obtaining asylum and thereby escape persecution. In the process, I learned more about asylum law and other aspects of immigration law as well as the horrible things that were happening in many parts of the world. I was able to use my experience and gifts in investigating and presenting facts and legal arguments to courts and officials and came to see this as one of the most important and rewarding vocations I have ever had.

In the process of this asylum work, I also learned for the first time about the humbling and courageous ministry and vocation of Salvadoran Archbishop Oscar Romero, who was assassinated in March 1980 because he repeatedly spoke out against human rights violations in his country. He now is my personal saint. I also learned about the important and courageous work in that country by the Jesuit priests and professors at the University of Central America, six of whom were murdered in November 1989 for the same reason, and they too have become heroes for me.

Another Salvadoran I met on my first trip to that country enriched my sense of the potential for vocation in practicing law. He was Salvador Ibarra, a lawyer for the Lutheran Church’s human rights office, who spoke about the joy he experienced in his work.

After retiring from the full-time practice of law in 2001, I served as an Adjunct Professor at the University of Minnesota Law School (2002 through 2010) to co-teach international human rights law. I thereby hoped to encourage law students to become interested in the field and to include such work in their future professional lives. Thus, this became another vocation with the side benefit of enabling me to learn more about the broader field of international human rights.

I chose another retirement in 2011, this time from part-time teaching, in order to start this blog about law, politics, history and religion. I came to see it as yet another vocation. I think it important to share my religious experiences and beliefs in the midst of active consideration of legal and political issues and demonstrate that it is possible for an educated, intelligent individual to have such beliefs.

In 2011 as a member of the planning committee for my Grinnell College class’ 50^th reunion. I thought we should do more to remember our deceased classmates than merely list their names in our reunion booklet. I, therefore, suggested that if each committee member wrote five or six obituaries, we would have written memorials for all of our departed classmates. However, no one else volunteered to participate in this project so I did it all myself except for a few written by spouses. After the reunion, I continued to do this when the need arises.

Although this project required a lot of work, I came to see it as pastoral work and rewarding as I learned about the lives of people, many of whom I had not really known when we were together as students. I drew special satisfaction when I learned that a classmate who had died in his 30’s had two sons who had never seen the College annuals that had a lot of photographs of their father as a physics student and co-captain of the football team, and I managed to find a set of those annuals which were sent to the sons. I thus came to see this as a vocation.

Many of these vocations resulted from invitations from others to do something, which I accepted. Initially the invitations did not seem to be calls for a vocation, and it was only after doing these things and reflecting upon them that I saw them as such.

The concept of vocation often seems like doing something for others without any personal rewards other than feeling good about helping others. I, therefore, am amazed by the many ways I have been enriched by these endeavors. I have learned about different areas of the law, different countries and the lives of interesting people, living and dead.

I feel blessed that I have discovered at least some of the work that God has called me to do, in Frederick Buechner’s words, “the work that I need most to do and that the world most needs to have done.”

Or as Rev. Hart-Andersen said on February 9^th, “When Jesus calls we get up and go, stepping forward in the direction of the one calling us. Being a follower of Jesus is not a destination . . . . Being called to follow Jesus is a way of life, a pilgrimage on which we embark together.”

What’s next?

The Lutheran Pastor at the 1973 Siege of Wounded Knee

In February 1973, leaders and members of the American Indian Movement (AIM) and others occupied the town of Wounded Knee, South Dakota to protest the administration of a tribal chairman and the alleged U.S. failure to honor its treaties with the American Indian nations. They controlled the town for 71 days while U.S. government law enforcement, including FBI agents, surrounded the town. The two sides exchanged gunfire daily, and people on both sides were killed.[1]

In May 1973, AIM leaders invited Rev. Paul Boe of the American Lutheran Church (ALC) to visit them at Wounded Knee for religious counseling.[2] Boe had an established relationship with them as a result of the ALC’s ministry to American Indians under his leadership. Indeed, AIM had been formed with ALC financial assistance at Rev. Boe’s urging; he then was the Executive Director of its Division of Social Services.[3]

Thereafter a South Dakota grand jury conducted an investigation as to what happened during the siege. Rev. Boe was subpoenaed by the grand jury. He was not asked to divulge any confessions he received at Wounded Knee, but he was asked about what he saw. He answered those questions he deemed did not violate any confidences. But he refused to answer questions as to whom he saw carrying guns on the ground that it would require him to betray confidential communications.[4]

As a result, the federal district court held Rev. Boe in civil contempt of court and ordered him to be confined in jail until he decided to answer the questions. The latter order was stayed or postponed while he appealed the contempt finding to the U.S. Court of Appeals for the Eighth Circuit.[5]

This is where I entered the drama with David E. Engdahl[6] as the lawyers to prepare an amici curiae (friends of the court) brief supporting Rev. Boe’s appeal of the contempt citation. The 11 amici were the ALC, the National Council of Churches of Christ in the U.S.A., the United States Catholic Conference, the Lutheran Church in America, the United Presbyterian Church in the U.S.A., the Right Rev. John E. Hines (Presiding Bishop of the Episcopal Church), the Center for Social Action of the United Church of Christ, the Board of Church and Society of the United Methodist Church, Msgr. John Egan (Executive Director of the Catholic Committee on Urban Ministry), the Department of Church and Society of the Division of Homeland Ministries of The Christian Church (Disciples of Christ) and the Lutheran Church-Missouri Synod.[7]

The Amici Brief asserted two arguments. First, the U.S. Constitution’s First Amendment religion clauses fobid compelling a clergyman to answer questions concerning communications and incident observations which his church requires him to keep confidential. Second, a clergyman has a federal common law privilege to refuse to disclose to a federal grand jury his confidential professional communications with his others and his observations incident thereto.[8]

On January 16, 1974, the Eighth Circuit reversed the judgment of contempt on the ground that Rev. Boe was denied due process requirements of notice and a meaningful opportunity to present his defense. The court said nothing about the issues raised by the amici curiae.[9]

Afterward two AIM leaders, Dennis Banks and Russell Means, were indicted on charges related to the events, but their 1974 case was dismissed by the federal court for prosecutorial misconduct, a decision upheld on appeal.[10]

[1] Wikipedia, Wounded Knee Incident, http://en.wikipedia.org/wiki/Wounded_Knee_incident.

[2] Reverend Boe (1915-1990) was a social activist who was instrumental in opening discussion about Native American issues in the ALC and with the American public. Boe’s position regarding AIM made him an unpopular figure in the ALC, and he resigned from the church in 1974 and traveled the country with his “Why Wounded Knee?” lecture series. (Center for Western Studies, Paul Boe Collection, http://www.augie.edu/cws/PaulBoespeech.html.

[3] Brief of the ALC, et al., Amici Curiae at 14-15, U.S. v. Boe (8th Cir. Jan. 9, 1974)[“Amici Brief”].

[4] Kelley, Tell All or Go to Jail: A Dilemma for the Clergy, Christian Century at 96 (Jan. 30, 1974).

[5] Id.

[6] At the time Mr. Engdahl was a professor at the University of Colorado Law School. Now he is a professor at Seattle University School of Law. (Seattle Univ. School of Law, David Engdahl, http://www.law.seattleu.edu/Faculty/Faculty_Profiles/David_Engdahl.xml.)

[7] Amici Brief.

[8] Id. at 10-38.

[9] U.S. v. Boe, 491 F.2d 970 (8th Cir. 1974).

[10] Wikipedia, Wounded Knee Incident, http://en.wikipedia.org/wiki/Wounded_Knee_incident.

Practitioner in Residence

UILaw — University of Iowa College of Law

For three days in February 1986 I was the practitioner in residence at the University of Iowa College of Law. I helped teach a class, made a presentation to a faculty seminar, gave a speech to an assembly of students and faculty and talked to a student group and a legal clinic seminar.[1]

Professor Patrick Bauer, a friend and former colleague at the Faegre & Benson law firm in Minneapolis, taught a first-year civil procedure class that I joined. The topic was Rule 11 of the Federal Rules of Civil Procedure that requires an attorney who submits a pleading, written motion or other paper to a federal district court to make an implicit representation that it was not presented for an “improper purpose,” that is was “warranted by existing law or by a nonfrivolous argument” for changing the law and that its factual contentions had or were likely to have “evidentiary support.” [2]

The problem for the class that day was posed by a recent case in which the court had denied a defense motion to dismiss a complaint and had directed defense counsel to submit a brief as to why they should not be subject to Rule 11 sanctions for their dismissal motion. The court thereafter decided that such sanctions were appropriate and imposed a fine on the defense counsel (in an amount to be determined). The violation of Rule 11, according to the court, occurred because the dismissal motion was not warranted by existing law and because the lawyers had not made a reasonable inquiry to determine if the motion was warranted by existing law.[3]

In the civil procedure class, I played the role of a law firm partner soliciting input and advice from his associate lawyers (played by the students) on preparing a complaint for a new civil lawsuit. Professor Bauer at the blackboard wrote down Rule 11 issues that were created by the ideas put forward by the associates.

“Sue the Bastard! Ruminations on American Litigiousness” was the title of my presentation to a faculty seminar. I had prepared this paper while on my sabbatical leave at Grinnell College. I discussed what I saw as the causes and effects of such litigiousness and suggested changes in our legal system and national psyche.[4]

An assembly of faculty and students was the forum for my speech, “The Pilgrimage of a Hired Gun–The First Twenty Years.” Accepting the challenge of Judge Frank M. Coffin for lawyers and judges to make “interiorly revealing” comments about their professional lives,[5] I discussed my first 20 years of practicing law and my search for meaning and spiritual values in a litigator’s life.

The first five years were my apprenticeship period when I was learning how to be a litigator and how to function in two large law firms in two new cities while also becoming a father to two sons. The self-sufficient, inner-directed person I thought I was had found a home in the well-paid, high-powered, eminently secular law firm.

The next five years I saw as my yuppie period. I was becoming more proficient as a lawyer. I advanced to partner at Faegre & Benson. We bought an upper-middle-class home. Still no room for a spiritual, religious life.

The next four or five years or so, in retrospect, was a time of mid-life crisis. I was increasingly skeptical of the significance of what I was doing for a living while facing personal challenges.

I started to sort out these problems over the next five years and started to integrate the various aspects of my life. In 1981 I joined Minneapolis’ Westminster Presbyterian Church and started to re-discover a spiritual life.[6] In 1982 I took a sabbatical leave from my law firm to teach at Grinnell College.[7] In 1984, I organized a liberal arts seminar for lawyers at the College.[8] I started to do research about two lawyers whom I admired: Joseph Welch and Edward Burling.[9] Being a practitioner in residence also gave me the opportunity to reflect on these issues and to share these thoughts with others.

I concluded my “Pilgrimage” speech by saying, “I embrace the tools of the trade [and] the craftsman’s pride in a job well done and let go of the omni-competent, omnipotent attitude of the successful lawyer.”

Little did I know at the time of this speech that my then just-starting involvement in the Sanctuary Movement case[10] would be an integrative experience that would lead to my becoming a pro bono asylum attorney,[11] my making a life-changing pilgrimage to El Salvador[12] and my becoming an adjunct professor of international human rights law at the University of Minnesota Law School.[13]

While a practitioner in residence at the Iowa College of Law in February 1986, I also spoke to a meeting of the Christian Legal Society on “Legal Issues Arising Out of the Sanctuary Movement and Government Infiltration of the Churches.” This was an account of the federal criminal case against leaders of the Sanctuary Movement and the Government’s disclosure that it had sent under-cover agents into worship services and Bible-study meetings at Arizona churches involved in the Movement. I also discussed the just-filed civil case against the U.S. Government over “the spies in the churches” by the American Lutheran Church and the Presbyterian Church (U.S.A.).[14]

Another activity at the Iowa College of Law was attending a legal clinic seminar. I talked about the American Bar Association’s Model Rules of Professional Conduct for lawyers and legal malpractice.[15] I shared my opinion that legislatures and courts were in the process of altering the balance between a lawyer’s role as advocate and the role as officer of the court to give greater importance to the latter. One example was the previously mentioned court’s imposing sanctions on lawyers for arguments that were not deemed in accordance with established law. I attributed this shift to increasing legal fees and the costs of litigation, the public perception that litigation processes had been abused and the knowledge that some lawyers are dishonest. This rebalancing carried with it a risk of diminishing a lawyer’s responsibilities to a client and hence an increased risk of malpractice. I concluded with this quotation: “Clients are entitled to much. They are entitled to dedication, diligent preparation, undivided loyalty, superb research, the most zealous advocacy and even sleepless nights; but they are not entitled to the corruption of our souls . . . . We do not lie, we do not cheat, we do not suborn, and we do not fabricate. We do not lie to clients. We do not lie for clients.”[16]

[1] Duane Krohnke Is First Daum Practitioner in Residence, Iowa Advocate, Fall/Winter 1985-86, at 15. The widow of F. Arnold Daum, a 1934 graduate of the Iowa College of Law and a senior partner in a Wall Street law firm, established the F. Arnold Daum Visiting Practitioner’s Program in the Law College to support bringing leading practitioners to the law school to appear in classes and exchange ideas with faculty and students. I was the first such practitioner to participate in this program.

[2] Fed. R. Civ. Pro. 11.

[3] Golden Eagle Distributing Corp. v. Burroughs Corp., 103 F.R.D. 124 (N.D. Cal. 1984).

[4] Post: A Sabbatical Leave from Lawyering (May 26, 2011).

[5] Post: A Liberal Arts Seminar for Lawyers (May 28, 2011).

[6] Post: Minneapolis’ Westminster Presbyterian Church (April 6, 2011).

[7] Post: A Sabbatical Leave from Lawyering (May 326, 2011).

[8] Post: A Liberal Arts Seminar for Lawyers (May 28, 2011).

[9] Post: Adventures of a History Detective (April 5, 2011).

[10] Post: The Sanctuary Movement Case (May 22, 2011).

[11] Post: Becoming a Pro Bono Asylum Lawyer (May 24, 2011).

[12] Post: My Pilgrimage to El Salvador, April 1989 (May 25, 2011).

[13] Post: My First Ten Years of Retirement (April 23, 2011).

[14] Post: The Sanctuary Movement Case (May 22, 2011)(account of the churches’ completed case against the Government).

[15] Krohnke, A Litigator’s Comments on the ABA Model Rules of Professional Conduct and Attorney Malpractice (Feb. 1986).

[16] Miller, A Report on the Morals and Manners of Advocates, 29 Cath. Law. 103, 108 (1984).

The Sanctuary Movement Case

After 19 years of practicing corporate litigation with prominent law firms in New York City and Minneapolis, I was a tabula rasa in what turned out to be important topics for me. I had no knowledge of, or interest in, international human rights law in general or refugee and asylum law in particular. Nor did I have any knowledge of, or interest in, Latin America in general or El Salvador in particular. At the same time I was struggling with the question of how to integrate my newly re-acquired Christian faith with my professional life.

In 1985 all of this started to change.

My senior partner at Faegre & Benson asked me to provide legal counsel to the firm’s client, the American Lutheran Church. The problem: how should the ALC respond to the news that the U.S. Immigration and Naturalization Service had sent undercover agents into worship services and Bible study meetings at Lutheran and Presbyterian churches in Arizona that were involved in the Sanctuary Movement?

As I soon discovered, that Movement was a loose association of Christian congregations that declared themselves sanctuaries or safe spaces for Salvadorans and Guatemalans fleeing their civil wars in the 1980s. The news about the “spies in the churches” was revealed by the U.S. Government in its prosecution of some of the Movement’s leaders for harboring and transporting illegal aliens, some of whom were later convicted of these charges.[1]

In the meantime, the ALC and my own church, the Presbyterian Church (U.S.A.), decided to join together to sue the U.S. Government over the “spies in the churches.” Eventually the U.S. District Court in Phoenix agreed with the churches that the First Amendment’s “freedom of religion” clause[2] provided protection against certain government investigations.

The court said that the churches “in the free exercise of their constitutionally protected religious activities, are protected against governmental intrusion in the absence of a good faith purpose for the subject investigation. The government is constitutionally precluded from unbridled and inappropriate covert activity which has as its purpose or objective the abridgment of the first amendment freedoms of those involved. Additionally, the participants involved in such investigations must adhere scrupulously to the scope and extent of the invitation to participate that may have been extended or offered to them.”[3]

I should add that the courtroom work in this case was done by two lawyers at the Phoenix firm of Lewis and Roca–Peter Baird[4] and Janet Napolitano.[5]

This case marked a turning point in my legal career as will be evident in subsequent posts.

[1] One of the founders of the Sanctuary Movement was Rev. John Fife of Tucson’s Southside Presbyterian Church. He was one of those convicted in 1986 in the criminal case. Six years later he was elected the national leader (Moderator) of the Presbyterian Church (U.S.A.)..(Wikipedia, John Fife, http://en.wikipedia.org/wiki/John_Fife.)

[2] “Congress shall make no law . . . prohibiting the free exercise [of religion].” (U.S. Const., Amend. I.)

[3] Presbyterian Church (U.S.A.) v. U.S., 752 F. Supp. 1505, 1516 (D. Ariz. 1990), on remand from, 870 F.2d 518 (9th Cir. 1989).

[4] Peter Baird, http://www.lrlaw.com/files/Uploads/Documents/Baird%20Bio.pdf; Phoenix veteran attorney Peter Baird dies, Phoenix Bus. J.(Aug. 31, 2009), http://www.bizjournals.com/phoenix/stories/2009/08/31/daily19.html.

[5] Napolitano now, of course, is the Secretary of the Department of Homeland Security. (Wikipedia, Janet Napolitano, http://en.wikipedia.org/wiki/Janet_Napolitano.)

Ruminations on Lawyering

Practicing law, especially litigation, had many rewards.

It was challenging. Tactics and strategy had to be developed and implemented. You had to know or quickly learn many different areas of the law. You had to learn about new business practices and industries. You had to become skilled at investigating factual issues through the formal litigation discovery processes and otherwise. This includes the skill of asking questions, especially on cross-examination.

You had to pull all the factual and legal pieces together into an effective and persuasive story and argument. You had to be able to present these arguments, in writing and orally, to your adversaries and the courts. You had to be able to persuade others–judges, juries, other lawyers, clients, witnesses and opponents. You had to be able to think on your feet. You had to organize and manage a team working on the case.

In all of this you needed to develop and maintain the trust and confidence of your clients as you guided them through the very stressful litigation process. It was like a multi-dimensional chess game.

Nor can I forget that this work was financially remunerative.

Such legal practice, however, has its negative side.

In order to be an effective advocate, you needed to understand and empathize with your client and have some emotional identification with the client. At the same time, you needed to have emotional separation from the client so that you could be the analytical professional counselor who could point out weaknesses in the case to your client and develop an overall assessment of the case. This balancing act is not easy and is very stressful.

There was always the fear at least in the back of your mind: did I forget or overlook something important or just get it wrong? (If you did, you can be sure your opponent or the court will point it out.)

When a case has not settled and the time for trial approaches, you shift into a higher gear where preparation for trial becomes nearly an all-consuming endeavor. When the trial actually starts, you shift into an even higher gear. During a full day in the courtroom, you are an actor in a drama that you also are co-directing: you are asking questions, making objections and arguing issues with opposing counsel to the judge while in the back of your mind you are trying to digest what has been happening and thinking about what is coming next. When the day in court is over, you retreat to your office or hotel room to start preparing for the next day: doing additional preparation of witnesses, supplementing your own preparation and revising tactics and strategy for the rest of the trial in light of what happened at trial that day. Early the next morning before going to court, you continue this preparation, often over new ideas that kept you from sleeping during the night. Somehow you also try to sleep and eat enough food to keep going. Need I say, this is stressful.

Most cases settle, and when they settle while you are in the trial preparation or actual trial mode, there is both relief and disappointment. Relief that you do not have to go through the remaining agony of a trial. Disappointment that you are not able to use all of the work that you have done to get ready for trial and to test yourself in the crucible of the trial.

Moreover, increasingly over my years of practice, some opposing lawyers in cases were exceptionally difficult people. Some, I thought, developed a modus operandi of trying to get under their opponents’ skin and thereby distract them from the case at hand and to intimidate them. Some were dishonest. Moreover, you could not get away from this other person; by the necessities of the case, you had to have continuous dealings with the person. In one case, I had dreams (nightmares?) of pushing an opposing lawyer off a cliff.

Judges could also be thorns in your side, especially when setting deadlines or dates for hearings or trials that interfered with your previously arranged personal plans.

I came to understand that the U.S. litigation process usually drives the opposing parties further apart, rather than produce reconciliation. In addition, when a case was finally over, even when you had obtained a favorable result for your client, you understood that the client was at least privately thinking that he or she hoped they would never have to see you again because if they did that would mean they were involved in another stressful and expensive lawsuit. Who needs or wants a headache?

In reaction to these negatives of the litigation process, I became interested in alternative dispute resolution. I studied ADR and became a mediator and arbitrator. I also served as an officer of the ADR Section of the Minnesota State Bar Association. I wrote articles about ADR, especially its ethical issues. Eventually, however, I concluded that it was too easy to become an ADR “true believer” focused on the processes of resolving disputes and that did not provide personal satisfaction.

After 20 years of practicing law, by happenstance or the will of God, I was presented with a case for the American Lutheran Church that opened the door for me to international human rights law. That case and my further work in this area of the law will be subjects of future posts.