One party to the conversation (
by Steve Timmer
Aug 13, 2012, 1:30 PM

Mike Brodkorb’s change of scenery

The Minnesota Senate’s Republican legal team (because that’s what it is; the DFL not only had nothing to do with L’affaire Brodkorb, it had nothing to do with choosing the defense lawyers for the Senate) had filed a petition to remove the case from the district court in Ramsey County to the U.S. federal court:

The Minnesota Senate on Thursday moved the employment discrimination lawsuit filed by former Senate staffer Michael Brodkorb into federal court, where U.S. District Judge Susan Richard Nelson will preside over the case.

The Senate’s lawyers made the petition (which will almost certainly be granted) on the basis of “federal question” jurisdiction, meaning that some of the claims made by Brodkorb are grounded in federal law: gender discrimination and civil rights violations. There are some state law claims, too: invasion of privacy and defamation (against both the state and Cal Ludeman); employment discrimination on the basis of gender is prohibited by state law, and by St. Paul ordinance, too. Just as the state court could have heard the “supplemental” federal claims, the federal court can hear the supplemental state claims.

The case was assigned to Judge Susan Nelson, an Obama-nominated judge who served as a federal magistrate for about ten years before becoming a judge. A lot of the pretrial stuff, though, will be handled by a magistrate, and not the judge herself.

There has been some commentary on the ‘net, and in the MSM, too, along the lines that Boy, this is a tough one for Mikey! Those federal court judges are just death on law suits! Real grim reapers!

Yawn. Yes, there are some differences. But the law is the law and it must be applied by either court. Many lawyers think the Eighth Circuit (where an appeal would go from the District Court in Minnesota) is tough on employment discrimination cases, but Phil Villaume knows where the federal courthouse is.

Both courts would have to apply “substantive” federal law and precedent to the federal claims and substantive state law and precedent to the state claims.

The federal and state courts have different procedural rules that are also in some aspects similar.

(I suggest anybody with an interest in pursuing this to put “Erie Doctrine” in your internet browser.)

The federal court does have a much cooler ID card for lawyers.

The application of state law in federal court can sometimes result in the federal court “certifying a question” to a state supreme court on the matter of interpretation of state law. It seeks an advisory opinion, in other words, from the highest judicial authority of a state on matters of state substantive law.

It is hard to know whether the certification of a question or questions here is much of a prospect, although any time you sue a state, or a department of one, questions of sovereign immunity under state law could arise. The principal consequence of certification is a delay in the proceedings, which defendants do ordinarily like.

Getting a jury is also different in federal court; first of all, the court draws potential jurors from around the state, not just from the county where the case is heard in state court. Some defense lawyers think that getting thrifty rural people included in the pool is helpful to defendants, but that’s an uncertain proposition.

Conducting voir dire (the examination of potential jurors) in federal court is also different: the judge does it, not the lawyers. The lawyers submit questions to the judge they would like asked; sometimes the judge even asks them. There is a chance to do some early advocacy of your cause when picking a jury which is therefore absent in federal court, but that applies to both sides.

The removal petition was not unexpected, but it is mostly unremarkable, at least in my view. And, it is most unlikely to tell the tale of the outcome.

Thanks for your feedback. If we like what you have to say, it may appear in a future post of reader reactions.