[I'm still "under the weather" and unable to make a full response to Peter's last Comment, and don't know when I'm likely to have all cylinders firing again. But, I sent Peter the following thoughts in an email message dated 04-02-04, and I want to thank him for engaging in this dialogue.]

I’m not convinced that your “establishment of an ideology” argument is a winner. Our Constitution is rampant with provisions that “establish” “ideological” requirements — e.g., representative goverment, free flow of commerce between states, freedom of religion, racial equality. Elimination of bias seems to me to be a lot closer in philosophy to the basic rights and priniciples of the Constitution than any ideology that opposes the elimination of bias or is neutral to it.

The fact that there is no “passive listener” test in Establishment of Religion cases does not seem helpful in trying to knock down the anti-bias requirement, because there is no similar ban in the Constitution against establishing non religious “ideologies” — at least, not the ideology that opposes racial and cultural bias.

The Pledge case, therefore, seems inapt — especially since the Court could decide, narrowly here, that the problem is forcing the children in the school setting (as opposed to adults, or even lawyers) to say the Pledge, and not the mere existence of the “under God” phrase. Also, I wonder: If there were 150 versions of the “under God” phrase in the Pledge, including a blank pause at that part of the Pledge that could be chosen by each speaker, wouldn’t the Court be far less likely to conclude that the existence of one choice mentioning God was unconstitutional?

[I'm still "under the weather" and unable to make a full response to Peter's last Comment, and don't know when I'm likely to have all cylinders firing again. But, I sent Peter the following thoughts in an email message dated 04-02-04, and I want to thank him for engaging in this dialogue.]

I’m not convinced that your “establishment of an ideology” argument is a winner. Our Constitution is rampant with provisions that “establish” “ideological” requirements — e.g., representative goverment, free flow of commerce between states, freedom of religion, racial equality. Elimination of bias seems to me to be a lot closer in philosophy to the basic rights and priniciples of the Constitution than any ideology that opposes the elimination of bias or is neutral to it.

The fact that there is no “passive listener” test in Establishment of Religion cases does not seem helpful in trying to knock down the anti-bias requirement, because there is no similar ban in the Constitution against establishing non religious “ideologies” — at least, not the ideology that opposes racial and cultural bias.

The Pledge case, therefore, seems inapt — especially since the Court could decide, narrowly here, that the problem is forcing the children in the school setting (as opposed to adults, or even lawyers) to say the Pledge, and not the mere existence of the “under God” phrase. Also, I wonder: If there were 150 versions of the “under God” phrase in the Pledge, including a blank pause at that part of the Pledge that could be chosen by each speaker, wouldn’t the Court be far less likely to conclude that the existence of one choice mentioning God was unconstitutional?

Welcome home. Speedy recovery.

We agree that the number of courses is not dispositive in this case (except for the public forum argument, which was not addressed by the Court). My reasoning is that requiring someone to attend an ideological non-substantive law seminar is not constitutional merely because one can find an ideology with which he agrees. Your reasoning is that we lawyers are big boys and girls who are not going to be indoctrinated by a two-hour course every three years, no matter how many or few the choices are.

Fair enough. But I think we can agree that Dr. Newdow’s pledge of allegiance case before the U.S. Supreme Court may have a bearing on the “passive listener” argument used by the Minnesota Supreme Court. To be sure, one objection is ideological and the other is religious, but it is doubtful that the “passive exposure” doctrine would resolve any constitutional infirmity in either type of case.

Welcome home. Speedy recovery.

We agree that the number of courses is not dispositive in this case (except for the public forum argument, which was not addressed by the Court). My reasoning is that requiring someone to attend an ideological non-substantive law seminar is not constitutional merely because one can find an ideology with which he agrees. Your reasoning is that we lawyers are big boys and girls who are not going to be indoctrinated by a two-hour course every three years, no matter how many or few the choices are.

Fair enough. But I think we can agree that Dr. Newdow’s pledge of allegiance case before the U.S. Supreme Court may have a bearing on the “passive listener” argument used by the Minnesota Supreme Court. To be sure, one objection is ideological and the other is religious, but it is doubtful that the “passive exposure” doctrine would resolve any constitutional infirmity in either type of case.

Again, I will refer you to my brief and appendix.

Out of state attorneys (JAG attorneys stationed overseas, especially) have only one or two courses that will satisfy the rule. How’s that for better facts?

The California Bar approves providers, rather than courses. There appears to have been an amendment recently that allows a non-approved provider or individual attorney to submit an individual course (say, a conference attended in another state), but unless someone complains about the content of an approved provider’s course, the California Bar does not look at content.

The granting of Bias CLE credit is a public forum. I contend that the viewpoint discrimination by the CLE Board affects the choices available to Rothenberg, so it is relevant to his case. But even if the public forum case is for a different day with different plaintiffs, this kind of viewpoint discrimination should give us pause. CLE provdiers _are_ required to say, “I believe X.” Maybe the First Amendment rights of CLE providers is beyond the scope of your weblog, but it is important in discussing this issue.

Have a safe trip.

Again, I will refer you to my brief and appendix.

Out of state attorneys (JAG attorneys stationed overseas, especially) have only one or two courses that will satisfy the rule. How’s that for better facts?

The California Bar approves providers, rather than courses. There appears to have been an amendment recently that allows a non-approved provider or individual attorney to submit an individual course (say, a conference attended in another state), but unless someone complains about the content of an approved provider’s course, the California Bar does not look at content.

The granting of Bias CLE credit is a public forum. I contend that the viewpoint discrimination by the CLE Board affects the choices available to Rothenberg, so it is relevant to his case. But even if the public forum case is for a different day with different plaintiffs, this kind of viewpoint discrimination should give us pause. CLE provdiers _are_ required to say, “I believe X.” Maybe the First Amendment rights of CLE providers is beyond the scope of your weblog, but it is important in discussing this issue.

Have a safe trip.

Peter, I’m happy to have your differing opinion here, but I’m not persuaded by your focus on numbers.   As you know, 600 or 700 was the number of separate sessions available across the state and 150 is the approximate number of different course-content offerings, according to the Court.   As I suggested in this posting (and as you totally  misconstrued when discussing my prior post at your website), I believe the numbers are not dispositive to the main constitutional issue — that is, even if there were only one anti-bias CLE course available statewide to fulfill the requirement, the Rule would be lawful.
As you know from law school and practice, an appellate court does not reach a broader constitutional question until it has to.  Because there are many different courses — not all of which should or would or possibly could be offensive to any reasonable lawyer — this was a consitutionally easy case.  Should there come a time when a better case is made on the facts for your theory that there is only one so-called “ideology” available from the session [e.g., one two-hour video presentation required for all to attend to fulfill the requirement], I believe the Court would and should uphold it (so long as there is no requirement to say “I believe X”).
And, no, I don’t think it matters that the classes must be attended in person and be “participatory” (any more than if the non-substantive topic were legal writing, moot court skills).  I think you’re incorrect on the facts as to whether California “looks at the content”, but the California case stressed that — as here — the lawyer does not have to profess any particular belief.  And, I believe the Minnesota Court has attempted to re-write the rule requirements to take some of your concerns into account.
I have to hit the road for my vacation, so I’ll stop here.

Peter, I’m happy to have your differing opinion here, but I’m not persuaded by your focus on numbers.   As you know, 600 or 700 was the number of separate sessions available across the state and 150 is the approximate number of different course-content offerings, according to the Court.   As I suggested in this posting (and as you totally  misconstrued when discussing my prior post at your website), I believe the numbers are not dispositive to the main constitutional issue — that is, even if there were only one anti-bias CLE course available statewide to fulfill the requirement, the Rule would be lawful.
As you know from law school and practice, an appellate court does not reach a broader constitutional question until it has to.  Because there are many different courses — not all of which should or would or possibly could be offensive to any reasonable lawyer — this was a consitutionally easy case.  Should there come a time when a better case is made on the facts for your theory that there is only one so-called “ideology” available from the session [e.g., one two-hour video presentation required for all to attend to fulfill the requirement], I believe the Court would and should uphold it (so long as there is no requirement to say “I believe X”).
And, no, I don’t think it matters that the classes must be attended in person and be “participatory” (any more than if the non-substantive topic were legal writing, moot court skills).  I think you’re incorrect on the facts as to whether California “looks at the content”, but the California case stressed that — as here — the lawyer does not have to profess any particular belief.  And, I believe the Minnesota Court has attempted to re-write the rule requirements to take some of your concerns into account.
I have to hit the road for my vacation, so I’ll stop here.

How the mighty have fallen. Before, it was supposed to be more than 600 classes to satisfy the rule. Now it is down to 150. I challenge you to point out one that is apolitical or non-ideological. I challenge you to name one from a libertarian perspective. I challenge you to name one from a conservative perspective, beyond the Federalist Society seminar that prompted the CLE Board to pass a resolution to deny credit to such seminars in the future. Is there such a thing as a moderate? Will every person who disagrees with the 149 liberal seminars be satisfied with a Federalist Society seminar?

I appreciate that you are a supporter of CLE, generally. But even a supporter of CLE that, by rule, does not deal with substantive law can look to the facts at issue. Do you find it relevant that Minnesota, unlike California, scrutinizes courses for content, does not allow self-study, and states that classes must be “participatory”?

Check out 599to1.blogspot.com for more information on this case.

How the mighty have fallen. Before, it was supposed to be more than 600 classes to satisfy the rule. Now it is down to 150. I challenge you to point out one that is apolitical or non-ideological. I challenge you to name one from a libertarian perspective. I challenge you to name one from a conservative perspective, beyond the Federalist Society seminar that prompted the CLE Board to pass a resolution to deny credit to such seminars in the future. Is there such a thing as a moderate? Will every person who disagrees with the 149 liberal seminars be satisfied with a Federalist Society seminar?

I appreciate that you are a supporter of CLE, generally. But even a supporter of CLE that, by rule, does not deal with substantive law can look to the facts at issue. Do you find it relevant that Minnesota, unlike California, scrutinizes courses for content, does not allow self-study, and states that classes must be “participatory”?

Check out 599to1.blogspot.com for more information on this case.