consultants are sandburs

Monday, August 25, 2014

Brodkorb - connector of some dots. [UPDATED]

putsch with a grudge? image source

Dots as a question, Crabgrass, here. Brodkorb's partial connecting of dots, here. (timestamped August 24, 2014 10:03 PM)

What part in planning or having knowledge of the latest Brodkorb report's factual allegations did the writing attorneys have, and when did they have it? They, or as more likely, any one or subset of them? As in who among them instigated the idea of their communication such as it was, and under what representations and/or pretenses was a consensus signature attained - and with what factual knowledge withheld or shared among them at the time of writing and signatures? (The recent Hoyt Properties case presents an interesting review of the factual candor that is required to be shared by negotiating lawyers). In effect, were any of the signing lawyers sandbagged via inadequate full disclosure by one or more of the others? Or by third persons pushing things and/or with a stake in having a lawyer-group public castigation of the Party's endorsee?

And why the blanket silence as to the circus stunt speech the now blackballed candidate made to the convention loyalists, in gaining applause and a standing endorsement? Why no criticism as that being akin to:

MacDonald’s lack of respect for law enforcement and the rule of law, both before and after her endorsement, demonstrates that she is unfit to sit on our State’s highest court and that her values and beliefs directly contradict those of the RPM [that is Republican Party of Minnesotsa] and its members.

[...] Her attitude is not appropriate for a judicial candidate.

Notice the artful drafting of "both before and after her endorsement" to exclude during that side show exhibition.

Admittedly, her Bible-waving disgraceful speech exhibition might not have been "values and beliefs [that]directly contradict those of the RPM and its members." The most essential problem is it should have been viewed that negatively by those wanting general public voting support, and it should have not gone unnoted by a group of distinguished and experienced litigators, keenly aware of best practices and norms of evidence and presentation.

Did that speech spectacle stunt pulled at the convention by MacDonald make her less or more "unfit to sit on our State's highest court?" Was it "appropriate for a judicial candidate?"

Turning next to Brodkorb's latest GOP revelations. Brodkorb wrote:

Since Thursday evening, Michelle MacDonald, the Republican endorsed candidate for the Minnesota Supreme Court, had been contacted numerous times by an attorney working with a member of the Republican Party of Minnesota’s State Executive Committee, with an offer to repudiate the Republican Party of Minnesota’s endorsement and end her campaign.

According to multiple sources, including members of the Republican Party of Minnesota’s State Executive committee, Patrick Burns, an attorney with Burns & Hansen, P.A, was working with Pat Anderson, a member of the Republican Party of Minnesota’s State Executive Committee from the 4th Congressional District on a plan to get MacDonald to repudiate the Republican Party of Minnesota’s endorsement and end her campaign.

My sources also confirmed that Republican Party of Minnesota Chairman Keith Downey was aware that Anderson was working on a deal related to MacDonald’s candidacy. This information conflicts with a statement provided by the Republican Party of Minnesota that no offer was presented to MacDonald by the Republican Party of Minnesota.

Anderson and MacDonald have crossed paths before, as MacDonald represented Anderson’s ex-husband, Mike Awada, in legal proceedings with Anderson after her divorce from Awada. Burns previously worked for Anderson’s successful campaign for state auditor in 2002 and later served as her communications director starting in 2003.

Burns began contacting MacDonald with an offer from the Republican Party of Minnesota that she repudiate her endorsement from the Republican Party of Minnesota and also end her campaign starting on Friday, August 22, 2014.

After reviewing electronic communications and the phone records between MacDonald and Burns, the offer from the Republican Party of Minnesota was discussed as both a request for MacDonald to repudiate the endorsement and also end her campaign. While MacDonald’s letter to Downey only referenced the request that she repudiate the endorsement, the request communicated by Burns discussed both items.

According to phone and text message records provided by MacDonald to, Burns called MacDonald 14 times between Friday, August 22, 2014 to Saturday, August 23, 2014. During the same time span, Burns sent MacDonald approximately 22 text messages. All of the communications were focused on the offer from the Republican Party of Minnesota.

MacDonald did communicate back and forth with Burns, but after reviewing the communications, Burns was aggressively pushing MacDonald to accept the offer from the Republican Party of Minnesota.

Burns declined to comment on any conversation he had with a representative of the Republican Party of Minnesota or the State Executive Committee, saying, “I’m not going to discuss any communications that I may have had or advice that I have made on behalf of anyone.” [...] “my communications are privileged.”

So, there is an assertion of attorney-client privilege. That could only ethically be raised by this Burns if, factually, there really was a privileged relationship vs his collaborating in "let's torpedo Michelle" as a coconspiracy or whatever you'd call it, but as an active participant beyond the giving of legal counsel.

He's on record, per the Brodkorb reporting, as having asserted a privileged relationship; so hopefully, for him, when the chips all have fallen it proves to be a legitimate assertion and not a convenient figleaf for silence over any co-participation role he may have had. If the figleaf is the case, and it gets dropped in the fallout, this Burns will not look too good.

What appearance does it all have to you, the communications Brodkorb reported; fitness and quality on the part of the stone casting MacDonald opposition, or a lesser prestige? Consider Burns in the phoning exchanges:

You’ve got a 12 o’clock deadline, according to what I can get out of the folks over at the committee [The Republican Party State Executive Committee], so what decision do you want to make?

They’re [The Republican Party of Minnesota] going to squash you like a bug. That’s what they want to do.

I’m trying to help you, by saving you before a noon deadline.

[bracketed material in original web posting] " ... squash you like a bug." Dire Straits sang, Sometimes You're the Windshield, Sometimes You're the Bug. To me, it looks as if the Republican inner party people who [presumably] instigated Burns contacts with MacDonald do not resemble a windshield; no, not much at all.

As to timing of the Burns-MacDonald reported events, the earliest timestamp Brodkorb gives is:

Burns sent MacDonald a text message at 4:39 PM on August 22, 2014:

I have a deal from the party for you

I am unaware of the timing of signing of the lawyers memo, or of its release to the press. i.e., whether it was before, after, or contemporaneous with the Burns-MacDonald contacts.

One last thing: When election day arrives in November, please, please, please Vote Lillehaug in the Supreme Counrt contest. Regardless of your vote anywhere else on the ballot, consider David Lillehaug as universally respected within the state's legal community.

A yet not publicly fully vetted thing, but needing vetting because of the lawyer letter, that opening part of the letter characterizing alleged affiliates of Ms. MacDonald as "some of her supporters who have referred to themselves as members of the 'Judicial Election Committee (JEC) of the 2014 Republican State Convention.' "

So is this some discredited rump group pushing the idea of partisan politicization of judicial elections, or an official offshoot of some in GOP leadership that went under the radar of others in GOP leadership; suggesting a right hand - left hand communication gap to where one did not know what the other was up to?

I would hope the writing lawyers might dare to write more about that choice of wording. Theirs, not mine.

Will heads roll, chips fall, or there be little more sound and fury signifying nothing?

It seems if you write once, ambiguously, there's a duty to write again, as with a supplemental brief clarifying a part of an argument to a judicial body. The public seems to deserve more detail. More detail specifically as defined by the partial disclosure chosen as, so far, appropriate in degree and kind. This instance - more is better.

___________FURTHER UPDATE__________
The undated posting of the lawyer letter is clarified by wording in this Aug. 24 updated item quote, "The executive committee received a memo from a group of conservative attorneys last week saying that she was unfit to be a Minnesota Supreme Court justice."

Please note: That "last week" language appears to place authoring and delivery of the lawyers' letter before the reported Burns-MacDonald contacts, hence, unless one or more of the lawyers knew of planning between Anderson-Burns and possibly others, the evidence is the lawyers wrote without knowing of parallel event planning/actions. That is reassuring. This business cooked up out of the CD4 republicans, not from any bastion of GOP party strength, reflects badly on the Republicans in their stronger districts/places, and that CD4 venue should worry about being a liability to ticket strengths elsewhere, while pushing whatever the agenda of the day may be.

As in: Were MacDonald to have "accepted" the Burns suggestion to repudiate the endorsement and step aside, who stood a heartbeat away to step in concurrently as a party substitute candidate, it having to be a licensed, admitted, practicing lawyer? (Which excludes Pat Anderson, but not Burns, from being the one ready to step in.) Possibly, of course, a MacDonald back-down might have been left as a situation where Lillehaug was then to be left running unopposed for the Supreme Court seat he currently holds as incumbent; i.e., an abandonment of politicizing Minnesota judicial elections, or at least a temporary backing away as a delicate necessity for the present.

Last, does anybody know why the Brodkorb post here in ending says "3 COMMENTS," but only two are shown? [update - the third was a pingback, and now a second pingback makes it four comments, two with content]

__________FURTHER UPDTE___________
Sheck Aug 25, at MPR, writing:

Republican gubernatorial hopeful Jeff Johnson says he’s still backing MacDonald but is calling her actions at the Fair booth “a distraction.”

Downey has refused repeatedly to answer questions about MacDonald and the decision to ban her from the booth. Today he denied a Politics.MN report that said party leaders made a formal offer to MacDonald to “repudiate the Republican Party of Minnesota’s endorsement and end her campaign.”

Downey walked out of the news conference when a reporter asked whether a lawyer was not telling the truth when he said he told MacDonald in a recent phone call that he was sent by the party with the offer.

“We’re talking about Al Franken here today and very un-Senatorial behavior. I’m glad to talk to you about other matters in a different venue. For now, let’s leave it at this,” Downey said.

It appears there is a recording of lawyer Burns, one way, and Downey the other way, saying Brodkorb's reporting is in error but declining more detail.

When an attorney/client privilege is asserted, by the attorney in the course of a negotiation, is client identity itself privileged information in that situation? As noted earlier, the recent Hoyt Properties case presents an interesting review of the factual candor that is required to be shared by negotiating lawyers. Attorney Burns is held as a matter of law, to know the law. To know candor in negotiation of a settlement is required. Hence, disclosing who his client is, in making an allegation of privilege, seems proper.

BOTTOM LINE: Is the identity of the client privileged or not privileged information under Minnesota law? And, would that be so under any circumstances, or are there relevant exceptions?

That's something a Minnesota lawyer might know. I do not. I expect the question might have to be researched by MacDonald if she were to decide to litigate how she was dealt with by various persons.

[Note - final above three paragraphs were rewritten from previous posting]

____________FURTHER UPDATE____________
MN Progressive Project covers the MacDonald saga, and it seems they too much wish to gleefully criticize the Republican inner party operatives' conduct that they make MacDonald look like "the victim" without noting that there is substantial evidence that she never really was particularly fit for the job she is seeking, and they ignore the dreadful speech she gave at the convention where somebody's brain fart was to push the GOP into judicial race endorsements and this was the racehorse they chose to put their money on. Bible waving, can you imagine that in Minnesota Supreme Court deliberations? We already are embarrassed as a state by Michele Bachmann, and we have this Michelle, (two l's).

That Bible waving convention stunt should offend every fiber of conscience of those treasuring greatly the principle of separation of church and state.

NEXT: In passing, who exactly in things is Don Evanson, who leaves post comments with Brodkorb and MPP, critical of GOP insider, Pat Anderson?

Reader help via a comment would be appreciated. This Evanson in his MPP comment wrote:

I suspect that controversial, divisive Executive Committee member Patricia Anderson, with the support of the disaffected, self-interested attorneys that sent Downey the memo that he forwarded to Party regulars are behind the engagement of attorney Patrick Burns, and likely the bouncers at the Republican State fair Booth.

Patricia Anderson was formerly known as Patricia Anderson Awada, but that marriage ended with a divorce, and it is known that Michelle MacDonald was of counsel to Mike Awada.

I also suspect that Anderson feels threatened by Michelle MacDonald’s success with the Party’s convention delegates, further overshadowing her declining influence in the Party. While she is strongly outspoken and apparently carries undue influence with the Executive Committee, she has a vindictive agenda, seeming to follow her failure to win election by Party delegates to a full term as the MNGOP National Committeewoman after serving a partial term that she filed due to a retirement.

For those that are pleased with the disruption that the Party is faced with, they might want to consider engaging attorneys that are the cause of the disruption for their legal representation needs. I’m sure that Kevin M. Magnuson, David W. Asp, Douglas P. Seaton, Harry Niska, R. Reid LeBeau II, Todd R. Vollmers will be pleased to hear from you. Oh, and don’t overlook the foul-mouthed “fuck”ing — his term — Patrick Burns.

[italics added] The final sentence relates to a partial transcript presented in the body of the MPP post.

Without in any way condoning the actions and possible motivations of Burns: In having earlier criticized the attorneys' memo, my focus was its apparent deliberate incompleteness, its avoidance of criticism of the disgraceful speech MacDonald made to the convention delegates (and how they applauded it). The memo's avoidance of any comment about the wisdom of politicization (any further) of judicial elections in Minnesota was its second major neglect. Yet, the lawyers laid out their points of belief that MacDonald's candidacy and conduct hurts the party ticket, up-ticket being where the stakes are highest, and it is hard to suggest they got that, (as far as they chose to argue), wrong.

It would be a most unfortunate thing were MacDonald, from the name-recognition in what is a down ticket race, were to end up elected over Lillehaug. That would be a public decision based other than on a rational look at the qualities and history of both candidates, before voting.

Taking glee in the "fumblers and Bumsteads" dimension of GOP inner party meanderings, sure, go for it since they deserve it, having earned it by their activities, but please do not boost the MacDonald image in the process.

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