The Complaint Department

Fifty years ago Minneapolis launched a program to stamp out discrimination. Now many of the dream's supporters doubt the city's civil-rights agencies are equal to the task.

The ruling didn't surprise Plasma Alliance's attorney, David Goldstein, but it angered him. The commission's order did not give any reasons for its decision, or even recount the facts of the case. In arguing for his clients, Goldstein had pointed out that the commission had no jurisdiction in the matter because the alleged conduct had occurred in St. Paul. Furthermore, he noted, by law the city isn't permitted to consider issues that already have been ruled on by the state. Most of all, Goldstein was incensed because he felt attorney David Edwards, the volunteer commissioner who presided over the hearing, was openly biased against his client. In a document filed with the commission, Goldstein asserted that Edwards "may personally disagree with the position taken by the United States Food and Drug Administration [that men who have had sex with other men can't donate blood] and [may] be unwilling to follow federal law as it applies to this matter."

In May the state appellate court sided with Plasma Alliance. Judge Robert Schumacher concluded that the commission had completely ignored relevant federal law. "The commission's failure to articulate adequate reasons for its decisions leads us to conclude that the finding of discrimination is arbitrary and capricious," he wrote in his opinion. In his own comment on the case, Judge G. Barry Anderson took the matter further, noting "the outrageous disregard" of Plasma Alliance's rights.

"It is difficult to fully catalog the deficiencies in the proceedings before the commission," Anderson wrote. "The commission took ten months to decide a summary-judgment motion without ever ruling on a key issue--do federal guidelines designed to protect public health preempt the jurisdiction of the commission?"

Mark Berens

The appellate judges also criticized the monetary award in the case. "The commission's award...is not supported by any findings and was apparently arrived at by calculating the maximum number of donations respondent could make through the year 2011, despite respondent's own testimony that he never planned to donate plasma more than a few times per year," Anderson wrote.

"The actions of the commission, when examined in total, add up to a disregard of basic principles of due process, objectivity and fairness," he concluded. "Given the approach adopted by the commission in this case, an independent hearing examiner would have been advisable."

The judges were pointing to a glaring problem with the commission's basic structure. Fearing that commissioners were too involved with civil-rights advocacy to be objective, state courts had previously urged Minneapolis to consider using hearing examiners--independent, impartial persons with legal expertise.

As it stands, says Goldstein, cases are being tried in front of well-intentioned citizen volunteers. "In essence you're really trying these cases to a single commissioner most of the time," says Goldstein, referring to the fact that when a panel of commissioners hears a case, one of the three must be an attorney. "More often than not, I feel that [the two lay members of the panel] are merely rubber-stamping the result that a lawyer-commissioner tells them that they should obtain." (Still, the commission's decisions are rarely overturned. Of 520 commission findings between 1982 and 1995, only 8 were overturned by higher courts. Current statistics are unavailable.)

The use of volunteers, Goldstein adds, exacerbates delays in the process. Edward Johnson filed his claim in June 1994. The department upheld it 16 months later, then spent a year attempting to negotiate a settlement. In October 1996 the matter was passed on to the commission. Because of scheduling conflicts among the members of the hearing panel, it took two more years to rule on the case, and another six months to determine damages.

"The commission can be a very frustrating entity to practice before," Goldstein sums up. "Some of the commissioners are very well qualified and fair and professional, and then there are other commissioners who are not well equipped to be acting as a judge in an impartial proceeding. It's my impression that the Minneapolis commission is viewed in the legal community as the least professional of the various fair-employment agencies in the state."

Commission chair Anita Urvina Selin concedes that the rebuke from the court in the Plasma Alliance case stung, and it has prompted some soul-searching. "It affects all of us as commissioners--how much we need to pay attention to what we're doing," she says. "What do we know, what do we need to know, and how do we educate ourselves as commissioners so that we can avoid anything like this in the future? There are federal guidelines that we failed to pay attention to or to look at, so our issue now is: How do we avoid that in the future?"

 

As the state appeals court was throwing out the Johnson case, Alan Hooker was coming to the realization that he'd had enough. The time he'd put in during the previous four months felt like a waste. Meeting agendas were dominated by internal politics, and communications with the department had become downright hostile.

Tensions had hit a new low during the commission's January 2000 gathering. New officers are elected each year at this time, a formality that had never sparked controversy in years past. But this year the commission's vice chair, Brenda Reid, had expressed interest in running for the top post. Reid is Kenneth White's sister.

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