Westminster Town Hall Forum: Fall 2011 Speakers

This coming Fall, the Westminster Town Hall Forum will welcome the following speakers: Norm Ornstein, Jeffrey Sachs, Tom Brokaw and Chris Matthews.[1]

Norm Ornstein
Jeffrey Sachs

Norm Ornstein:”Broken Government: Where Do We Go from Here?” (September 15). Ornstein is a Resident Scholar at the American Enterprise Institute for Public Policy Research in Washington, D.C. He is an election analyst for CBS News and writes a weekly column for Roll Call, the Capitol Hill newspaper. He also serves as co-director of the Transition to Governing Project that seeks to create a better climate for governing. A Minnesota native, he earned M.A. and Ph.D. degrees in political science from the University of Michigan.[2]

Jeffrey Sachs: “Reawakening American Virtue and Prosperity” (October 20). Sachs is Director of The Earth Institute and Professor of Health Policy and Management at Columbia University. As a leading economist, he advocates continuing economic development with environmental sustainability and mitigating human-induced climate change. His latest book is The Price of Civilization, a blueprint for America’s economic recovery. He holds B.A., M.A. and Ph.D. degrees from Harvard University.[3]

Tom Brokaw
Chris Matthews

Tom Brokaw: “The Time of Our Lives: Past, Present, Promise (November 8). Brokaw is a Peabody and Emmy Award-winning journalist. He served as anchor and managing editor of the NBC Nightly News from 1983 to 2005 and now is a special correspondent for the network. His latest book is The Time of Our Lives: Past, Present, Promise which examines changes in America’s life since the Great Depression of the 1930’s and a reflection on our future.[4]

Chris Matthews: “Jack Kennedy: Elusive Hero” (December 8). Matthews is a writer, political commentator and the host of the nightly MSNBC show “Hardball with Chris Matthews”and the weekly NBC panel discussion “The Chris Matthews Show.” Before entering journalism, he was on the staff of four members of Congress and former Speaker of the House Tip O’Neill and also served as a speechwriter for President Jimmy Carter. His latest book is Jack Kennedy: Elusive Hero.[5]

The Forum engages the public in reflection and dialogue on the key issues of our day from an ethical perspective. [6] The Forum is nonpartisan and nonsectarian. Forums are free and open to the public. They are held from noon to 1:00 p.m. (CT) at Westminster Presbyterian Church, Nicollet Mall and 12th Street, in downtown Minneapolis. Each forum is preceded by music at 11:30 a.m. A public reception and small group discussion follow the forum from 1:00 to 2:00 p.m. The Forum presentations also are broadcast on Minnesota Public Radio.

[1] Westminster Town Hall Forum, http://westminsterforum.org/ .

[2] AEI, Norman J. Ornstein, http://www.aei.org/scholar/48.

[3] Earth Institute, Prof. Jeffrey Sachs, Director, http://www.earth.columbia.edu/articles/view/1804.

[5]  Wikipedia, Chris Matthews, http://en.wikipedia.org/wiki/Chris_Matthews.

[6] See Post: Westminster Town Hall Forum (July 25, 2011); Post: Westminster Town Hall Forum: Krista Tippett (July 26, 2011); Post: Westminster Town Hall Forum Marcus Borg (July 27, 2011).

Ted Turner’s Superstation in the Crosshairs

Ted Turner

In 1969 Ted Turner, the now famous media mogul, bought a defunct Atlanta UHF (Ultra High Frequency) television station and put it back on the air as WTCG. As an over-the-air station, it also was microwave-linked to many cable companies in the Southeastern U.S. In December 1976, however, Turner through his company (Turner Broadcasting System, Inc.) decided to offer his station nationwide via satellite to all cable companies. By 1978 it was on cable systems in all 50 states and became known as a “superstation.”[1]

The company that carried the station’s signal to the satellite was Southern Satellite Systems, Inc.  under a license from the Federal Communications Commission (FCC). Initially Southern Satellite received the signal over the air by a UHF receiving antenna and then retransmitted it to a satellite transponder leased from RCA. The satellite transponder in turn relayed the signal down to cable systems’ receiving antennae on earth, and those systems retransmitted the signal by wire to cable customers.

In March 1979, pursuant to FCC permission, Southern Satellite began to receive the WTBS signal by direct microwave connection, instead of off the air except when the former was not operating. Under this approach, WTBS was able to send local commercials over the air in Atlanta and national commercials via the microwave connection to Southern Satellite.

WTBS’ programming included old movies like the classic “Casablanca” with Humphrey Bogart and Ingrid Bergman and old syndicated television programs like “The Bob Newhart Show” and “I Dream of Jennie,” under licensing agreements, exclusive to the Atlanta area, with the owners of the copyrights.

This “superstation” operation was challenged by Hubbard Broadcasting, Inc., a Minnesota corporation headquartered in Minneapolis. It owned television broadcast stations in Minneapolis/St. Paul, Tampa/St. Petersburg, Florida and Albuquerque, New Mexico that had exclusive copyright licenses for “Casablanca,” “The Bob Newhart Show” and “I Dream of Jennie.” All three of these Hubbard stations were in areas reached by the satellite-carried signal of WTBS.

The case, which was filed in Minnesota’s federal court,[2] alleged that Southern Satellite and Turner Broadcasting had violated the copyrights on these programs that had been licensed to Hubbard. The key issue for these claims was whether Southern Satellite qualified for the common carrier exemption in section 111 of the Copyright Act of 1976. This exemption existed for carriers that acted merely as a conduit between the distant broadcast station and the interested cable systems. I served as the principal lawyer for Southern Satellite in this case.

The Minnesota district court eventually concluded that Southern Satellite did qualify for this exemption and, therefore, granted its motion for summary judgment without a trial. The appellate court affirmed this decision.[3]

During the pre-trial discovery phase of the case, Hubbard’s attorneys took the deposition of Ted Turner in Atlanta. This was during the 1982 NFL players’ strike when Turner Broadcasting joined others in arranging games by substitute players. These substitute games were not well attended or watched on tv on the first weekend, and Turner was busy at his company making arrangements for the second weekend of such games.[4] At his request because of the press of business, his deposition was held at his company’s headquarters.

His regular outside counsel in Atlanta told me before the deposition that Turner was a tobacco chewer, and some of his depositions in other cases were shorter than anticipated because the female lawyers asking the questions were grossed out by his tobacco chewing and spitting his expectorate into a paper cup during the deposition. (This, however, was not a problem for Hubbard’s attorney.)

Ted Turner sailing

After the deposition, I joined Turner and his lawyer in Ted’s office to review the just completed deposition. I noticed the many sailing trophies in the room. (In 1977 he was the captain of the yacht that won the America’s Cup, was Yachtsman of the Year four times and recently was elected to the National Sailing Hall of Fame.[5])

This obviously was a very important case for both sides and was vigorously contested at the trial court, court of appeals and Supreme Court levels. Throughout it all, however, I had a thoroughly professional relationship with Hubbard’s attorneys, Sidney Barrows, Byron Starns and Patricia Schaffer of the Minneapolis firm of Leonard Street and Deinard. As noted elsewhere, unfortunately this was not always true in my career of lawyering.[6]

I, therefore, came to believe that is was important for attorneys publicly to acknowledge when lawyers live up to the best of the profession. Accordingly at the conclusion of this case’s hearing on cross motions for summary judgment at the district court, I told the court, “I would like to express my appreciation to Sidney Barrows and to Byron Starns and their law firm as well as John McDonough [Hubbard’s in-house lawyer]. This has been a lawsuit in which the adversaries have dealt very harshly with one another in terms of the legal issues, but in terms of professional relationships it has been great. I appreciate that.” Mr. Barrows responded, “It is in line with what Your Honor said in another argument about our being a noble profession.” The Judge said, “I sense that too and I appreciate it.”[7]

[1] Wikipedia, TBS (TV channel), http://en.wikipedia.org/wiki/TBS_(TV_channel); Wikipedia, Ted Turner, http://en.wikipedia.org/wiki/Ted_Turner; Ted Turner Enterprises, http://www.tedturner.com/home.asp. In 1979 Turner renamed the station “WTBS” and branded it “Super Station WTBS,” and in 1981 he developed an electronic system to feed local ads over-the-air in Atlanta and national ads via satellite. There were other subsequent name changes. In 1987 it became “Super Station TBS;” in 1989, “TBS Superstation;” and in 1990, just “TBS.”

[2] Post: Minnesota’s Federal Court (June 28, 2011).

[3] Hubbard Broadcasting, Inc. v. Southern Satellite Systems, Inc., 593 F. Supp. 808 (D. Minn. 2004), aff’d, 777 F.2d 393 (8th Cir. 1985), cert. denied, 107 S. Ct. 643 (1986), reh’g denied, 107 S. Ct. 964 (1987).

[4]  Farnsworth, NFL crossed the line on Replacement Sunday, Seattle Post-Intelligencer (Oct. 2, 1982), http://www.seattlepi.com/news/article/NFL-crossed-the-line-on-Replacement-Sunday-1097669.php.

[5] ajc, Turner in sailing hall (Aug. 2, 2011), http://www.ajc.com/news/ted-turner-in-sailing-1069456.html.

[6] Post: Ruminations on Lawyering (April 20, 2011).

[7] Transcript of Hearing, Hubbard Broadcasting, Inc. v. Southern Satellite Systems, Inc., No. 3-81-Civil-330 (D. Minn. June 21, 1984.)

U.S. Litigation over a Russian Real Estate Project

Moscow, Russia

After the collapse of the Soviet Union in 1989, many U.S. businesses sought new opportunities in Russia.

One was Ellerbe Becket Construction Services, Inc. (Ellerbe), a Minneapolis-based firm that offered architectural, engineering and construction management services. To assist them in this effort, it hired Nicholas Loukianoff, a Russian-American citizen who was bilingual in English and Russian.

One of the potential projects for Ellerbe was a Korea-Russia Trade Center in Moscow, and Ellerbe asked Loukianoff to help find a site in Moscow for such a building. However, the potential Korean client decided not to proceed, and the building was not built.

Nevertheless, Mr. Loukianoff’s company sued Ellerbe in federal court in San Francisco, California for damages under various legal theories. I was the principal lawyer for Ellerbe in this case.

During the pre-trial discovery, I took the deposition of Mr. Loukianoff’s expert witness, a newly minted Russian real estate agent. I did so by telephone from my office in Minneapolis to Ellerbe’s Moscow office with the English-Russian interpreter in Moscow. During the course of my examination, I asked him something like, “Private real estate transactions in Russia have only been happening in the last several years, right?” He did not agree with that statement and mentioned Russia’s sale of Alaska to the U.S. in 1867. That comment still makes me chuckle.

Several weeks before the trial was scheduled to start in January 1999, the court granted Ellerbe’s motion for summary judgment on three of plaintiff’s claims. Thus, the only claims left for trial were breach of contract and quantum meruit (reasonable value of services).[1]

At the start of the trial, the court granted other Ellerbe motions to exclude certain plaintiff’s evidence at trial, including a new damage theory (1% of the total built-out cost of the Center that was never built).[2] As a result, the potential value of plaintiff’s case collapsed, and the case immediately settled with a very modest payment by Ellerbe.

I still wish that I had obtained a trip to Moscow for this case.

[1] Memorandum Decision & Order, NAL Associates, Inc. v. Ellerbe Becket Construction Services, Inc., No. C-97-0997 (N.D. Cal. Jan. 8, 1999).

[2] Order , NAL Associates, Inc. v. Ellerbe Becket Construction Services, Inc., No. C-97-0997 (N.D. Cal. Jan. 26, 1999).

Dysfunctional U.S. Congress Averts Default

The good news: the U.S. Congress and the President, at the last moment, were able to come to an agreement on increasing the U.S. Government’s debt limit and thereby avert a default on the government’s securities.

More good news: military spending is specifically included for possible reduction, rather than leaving all the cuts to discretionary spending for the benefits of our citizens.

The bad news: the Congress demonstrated its functionality in reaching this agreement. The rest of the world has looked in disbelief at the congressional spectacle and has less confidence in our political system and leaders.[1]

More bad news: the agreement calls for cuts in discretionary government spending when our economy is sputtering. Keynesian economics suggests the need for the federal government to run deficits during economic recessions.[2]

More bad news: the agreement means that much attention will continue to be spent on deficit reduction, rather than improving our deteriorated infrastructure and frayed social safety net.

The public is disgusted at the recent spectacle in the Congress and eager to blame all who were involved. Democrats, in my opinion, although not blameless, need to focus attention on the destructive role played by the Tea Party in the House of Representatives and to seek their defeat in the 2012 election.[3]

[1] See Post: Disgusting U.S. Political Scene (July 23, 2011); Post: The Founder of Modern Conservatism’s Perspective on the Current U.S. Political Turmoil (July 28, 2011); Post: Dysfunctional U.S. Congress Careens Towards U.S. Default (July 30, 2011).

[2] Krugman, The President Surrenders, N.Y. Times (July 31, 2011).

[3] Krugman, The Centrist Cop-Out, N.Y. Times (July 28, 2011).

The Lutheran Pastor at the 1973 Siege of Wounded Knee

Wounded Knee, SD, 1973
Wounded Knee, SD, 1973

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.

Buying Banks and Selling Hot Dogs Are the Same Under the Law

Federal Reserve Building, Washington, D.C.

In the early 1970’s the Board of Governors of the Federal Reserve System (the Board) approved the acquisition of two Iowa (Bettendorf and Keokuk) banks by Minneapolis-based Northwest Bancorporation (Northwest).[1]

At the time, federal law provided that no acquisition of a state bank by an out-of-state bank holding company was permissible unless such an acquisition was “specifically authorized by the statute laws of the State in which . . . [the acquired] bank is located.”[2] An Iowa statute at the time generally barred out-of-state bank holding company acquisitions of Iowa banks “unless such bank holding company was on January 1, 1971, registered with the federal reserve board as a bank holding company, and on that date owned at least two banks in [Iowa].”[3] This is what is colloquially called a “grandfather clause,” and at the time Northwest was the only out-of-state bank holding company owned or controlled any Iowa banks and thus was the only person covered by this grandfather clause.[4]

The Board’s approval was contested and challenged by the Iowa Independent Bankers Corporation (Iowa Bankers), an association of over 400 Iowa banks on various grounds. The key ground was the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. The Iowa Bankers argued that the Iowa statute violated equal protection by creating two classes of out-of-state bank holding companies: (a) those owning one or no Iowa banks and (b) those owning two or more Iowa banks with Northwest being the only such holding company in the latter class.[5]

The Board in approving the acquisitions declined to rule on this constitutional objection. It said that only the judiciary could do so.[6] Thus, the Iowa Bankers petitioned the appropriate federal court of appeals in Washington, D.C. to set aside the Board’s approval on this and other grounds.

Faegre & Benson was the regular outside general counsel for Northwest, and I was designated as the Faegre lawyer responsible for defending the Board’s approval of the acquisitions. With the help of others at the law firm, I wrote the appellate brief for Northwest and argued the case before the appellate court.

U.S. Courthouse, Washington, D.C.

In February 1975, the appellate court unanimously affirmed the Board’s approval of the acquisitions and dismissed the petition by the Iowa Bankers.

On the Equal Protection issue, the court stated that as the Iowa statute did not create a suspect classification or impinge upon fundamental rights, the court’s review was limited to determining whether the statute had a rational relationship to a legitimate state purpose. The appropriate classes under the statute, said the court, were those holding companies not owning any Iowa banks and those that already did. More importantly, the court concluded it was “perfectly rational for the Iowa legislature to determine that Northwest . . .  [had] a pre-existing stake in the Iowa banking system and [had] . . . proven itself to be a positive force in the system [and] should be allowed to compete on the same basis as other Iowa banks . . . .” Likewise it was rational for the Iowa legislature, according to the court, to decide that Iowa would not be well served if other out-of-state holding companies “were allowed wholesale entry into the Iowa market.”[7]

Jackson Square, French Quarter, New Orleans
French Quarter, New Orleans

At the same time as the Northwest litigation, the same legal issue was presented to the U.S. Supreme Court. In City of New Orleans v. Duke, a New Orleans ordinance banned pushcart vendors in the French Quarter except for those who already had done so continuously for over eight years with only two such vendors (one hot dogs; the other, ice cream) qualifying under that grandfather clause.[8] The Supreme Court held that the ordinance was constitutional. It stated, “When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations.” Such regulations are valid, according to the Court, so long as their classifications are “rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude.” Therefore, the Supreme Court concluded that the “record makes abundantly clear that the . . .  ordinance, including the ‘grandfather provision,’ is solely an economic regulation aimed at enhancing the vital role of the French Quarter’s tourist-oriented charm in the economy of New Orleans.”[9]

That is why I say buying banks is the same as selling hot dogs under the law.

[1] Iowa Independent Bankers v. Board of Governors, 511 F.2d 1288 (D.C. Cir. 1975), cert. denied, 423 U.S. 875 (1976). Northwest Bancorporation in 1983 changed its name to Norwest Corporation, which in 1998 was merged into Wells Fargo & Company of San Francisco.

[2] 12 U.S.C. § 1842(d).

[3] Iowa Code Ann. § 524.1805.

[4] 511 F.2d at 1291-92.

[5] Id. at 1292, 1294.

[6] Id. at 1292-93.

[7] Id. at 1294-96.

[8] City of New Orleans v. Duke,  472 U.S. 297 (1976).

[9] Id.

[10] Iowa Independent Bankers v. Federal Reserve Board, 423 U.S. 875 (1975).

Minneapolis Police’s Pretextual Arrests of Political Dissidents in 1970

Early 1970 was a turbulent time in the U.S. We were still in the Viet Nam War in the Nixon Presidency. On February 18th a Chicago jury found the “Chicago Seven” guilty of conspiring to incite a riot at the 1968 Democratic National Convention. On March 6th a bomb being constructed by members of the Weathermen political dissenters group for use at an upcoming military dance exploded in Manhattan, killing three members of the group. On March 17th the U.S. Army charged Lieutenant Calley and other officers of suppressing information related to the 1968 My Lai massacre in Viet Nam. On April 29th the U.S. invaded Cambodia to hunt out the Viet Cong, sparking antiwar protests throughout the U.S. On May 4th four students at Kent State University in Ohio were killed and nine others wounded by Ohio National Guardsmen at a protest against the Cambodian incursion (only 10 days later (May 14th) two other students were killed and 12 injured at antiwar demonstrations at Jackson State University in Mississippi). On May 9th an estimated 100,000 marched on the Pentagon to protest the war and the killings at Kent State.[1]

These protests also touched Minnesota. On May 9th there was a large crowd that marched from the University of Minnesota (UM) campus in Minneapolis to the State Capitol Building in St. Paul. There also was a student strike at the UM.[2]

David Lykken

At the same time, a Minneapolis fundraiser was being planned by “People Against Missiles,” an ad hoc group, for Saturday night, May 9th, at the south Minneapolis home of Professor David Lykken, a noted UM behavioral geneticist and professor of psychology and psychiatry.[3] The fundraiser sought to raise money to send people to North Dakota to protest a proposed antiballistic missile installation. It was publicized by mailing postcards to people on local peace organizations’ mailing lists, by including notices in newsletters of several organizations and by distributing flyers primarily at the UM. The flyer stated that there would be “donations and cash bar.”[4]

Two days before the fundraiser, a Minneapolis policeman saw the flyer and took it to a meeting with the head of the Department’s Morals Squad. Since selling liquor without a license was a violation of a city ordinance, the Department head instructed two other policemen to “handle it in the usual manner,” which meant sending an officer to the gathering undercover and attempting to purchase some liquor.[5]

On the night of May 9th, 20 or so middle-aged adults attended the fundraiser. They were quiet, mainly engaging in small-group conversation about the antiballistic missile system, protesting the system, and current political issues, including the protest march earlier that day at the UM. Some had coffee and soda; others, beer. No one had wine or hard liquor. There was a basket for donations; another for “Donations, Beer 50 cents, Pop 25 cents.”[6]

Around 10:00 p.m. two police officers, under cover, came to the fundraiser. One of them had a beer and left a marked $5 bill in the basket and later 50 cents for another beer. He stayed for about an hour and engaged in conversation about the missile system and the activities of “People Against Missiles.”[7]

He and the other undercover policemen left the house for a nearby meeting with another officer of the Morals Squad and others from the Tactical Squad. They then made a plan for arresting the people at the professor’s home.[8]

Around midnight 10 to 20 uniformed officers descended on the house, arrested everyone and took them all (except the professor’s wife and their young son) downtown to Police headquarters where they were charged with being in a disorderly house and the professor with operating a disorderly house and selling liquor without a license; they also were fingerprinted, photographed and then released.[9]

One of the Police leaders conducted a search of the house and seized beer (and wine and hard liquor that was not available at the event) as well as every piece of paper in sight on the first floor of the house, including People Against Missiles and other anti-war literature.[10]

Later all of the criminal charges were dismissed by the local court, and another lawyer (Bill Kampf[11]) and I volunteered to be the pro bono (no fee) lawyers on behalf of the Minnesota Civil Liberties Union[12] for those who had been arrested in a lawsuit for damages against the policemen who were involved for violation of their constitutional rights. We did just that with a complaint by the 20 people who had been arrested against the 20 or so policemen and other officials who had been involved.[13]  The case was filed in Minnesota’s federal court.[14]

During the course of pretrial discovery, I obtained what turned out to be critical evidence in the Police files. These documents indicated that immediately after the arrests the Police leader of the raid called the local office of the FBI to report the identity of the arrestees and the political nature of the seized documents. Some, for example, mentioned the Socialist Workers Party.[15]

Eventually Bill Kampf and I tried the case to the court without a jury. U.S. District Judge Philip Neville[16] conducted the trial and concluded that three of the policemen were liable to the 20 plaintiffs for $11,500 compensatory damages plus $7,500 punitive damages. As the court stated, these three policemen “instigated, planned, and directed the raid [with two of them] . . . actually effecting the arrests. They had first-hand knowledge of the true nature of the gathering . . . and were the only ones who effectively might have and should have prevented the raid. . . . Their decision . . . not only evidences bad judgment . . ., but more importantly displays a callous disregard for the constitutional rights of other who may have been of different political persuasion. Such activity . . . will not be tolerated. . . .”[17]

In concluding that the three policemen had violated the plaintiffs’ constitutional protection under the U.S. Constitution’s  Fourth Amendment’s ban on unreasonable searches and seizures, the court stated, “the arrests . . . were improperly motivated, undertaken not in furtherance of good faith law enforcement but for the purpose of harassing those at the gathering because of their political beliefs.” Under all the circumstances, the “police could only have been motivated by a desire to harass the guests at the fundraiser, and/or attempt to set an example for others who might stage antiwar gatherings.” Important in that regard was the evidence of the lead Policeman’s immediately calling the FBI about the political documents that were seized.[18]

After the judgment was entered against the three policemen, the Minneapolis City Council voted to pay the judgment on behalf of the three, a decision that was upheld by the Minnesota Supreme Court in a taxpayer’s lawsuit.[19]

This case shows how the U.S. political passions of 1970 affected a city in the middle of the country. It also illustrates the importance of lawyers willing to defend civil liberties on a pro bono basis and of a strong, independent judiciary.

[2] Lykken v. Vavreck, 366 F. Supp. 586, 588 (D. Minn. 1973. I found copyrighted photos of the large May 9th crowd in front of the Minnesota Capitol under the heading Minnesota State Capitol Demonstrations at http://www.flickr.com/photos/minnesotahistoricalsociety.

[3] Obituary, David Lykken, U of M psychology professor, StarTribune (Sept. 20, 2006).

[4]366 F. Supp at 587.

[5] Id. at 588.

[6] Id.

[7] Id. at 588-89.

[8] Id. at 589.

[9] Id.

[10] Id. at 590.

[11] Lerner, Attorney W. Kampf dies; was expert on bankruptcy, StarTribune (Sept. 18, 2005). As Bill and I worked on the case together, we became friends and often joked that we brought our different skills to make a good team. I was organized, methodical and persistent, and Bill was more instinctive and risk-taking.

[12] The Minnesota Civil Liberties Union was an affiliate of the American Civil Liberties Union and is now known as the American Civil Liberties Union of Minnesota, http://www.aclu-mn.org.

[13] 366 F. Supp. at 587, 590.

[14] See Post: Minnesota’s Federal Court (June 28, 2011).

[15] 366 F. Supp. at 590; Minnesota Historical Society, Socialist Workers Party: Minnesota Section (Box 2), http://www.mnhs.org/library/findaids/00632.xml; Minnesota Historical Society, Minnesota Civil Liberties Union (Box 23), http://www.mnhs.org/library/findaids/00497.xml.

[16] Judge Neville also was in charge of the consolidated pretrial proceedings in the private IBM antitrust cases. (See Post: The IBM Antitrust Litigation (July 30, 2011).)

[17] 366 F. Supp. at 599.

[18] Id. at 593.

[19] Douglas v. City of Minneapolis, 304 Minn. 259, 230 N.W.2d 577 (1975).