Date: Sun, 6 Aug 95 10:25 PDT From: bobb@Enigma.metro2.k12.mn.us (Bob Bulthuis) There was a recent decision in a discrimination case that is being heard at the Minneapolis Commission of Civil Rights that sets an interesting positive precedent. I am attaching the complete ruling below. This involves a situation where an attorney is trying to block a pro-gay judge from hearing a discrimination case. The Streater case is one of 3 cases that are being heard at the Minneapolis Commission charging Omni Hotels with anti-gay discrimination. I think it is newsworthy. You can direct questions to our attorney Brian Huling (612) 825-2331. I am hoping that you will publicize this ruling. The attorney for the Omni Hotels has been representing them throughout the period when they were discriminating against us. Ruling: *********************************************************************** CITY OF MINNEAPOLIS COMMISSION ON CIVIL RIGHTS Mathew Streater, complainant vs. Omni Northstar Hotel, respondent File number 92178-EM-9 ____________________________________________________________ Respondent has submitted a motion to disqualify the presiding officer in this case, Commissioner Robert Sykora. The motion, as well as supporting documents and affidavit of D.G. Newhall, Attorney for respondent, were submitted in a timely fashion under the rules of Procedure for Contested Case Hearings. This case involves a complainant, Matthew S. Streater, who has charged the respondent, Omni Northstar Hotel, with an allegation of employment discrimination based on the complainant's affectional preference. The objection to Commissioner Sykora's participation in this matter is based upon the respondent's belief that Commissioner Sykora "has been an advocate for the rights of gays and lesbians", the he "is presently the Executive Director of the Lambda Justice Center ("LJC"), a Twin Cities gay and lesbian advocacy organization", and that previous statements made by Commissioner Sykora "cast some doubt as to his impartiality" in this matter. Subsequent filings and responses brought forth discussion of participation by a national civil rights organization, Lambda Legal Defense and Education Fund, Inc. (LLDEF"). As chair of the Commission, I am charged with determining this matter as part of the record. I have reviewed the allegations by respondent's attorney as well as responses from complainant's attorney, along with other facts available to me. In making these allegations, respondent's attorney has made a number of factual errors and apparently misunderstands the role, prescribed by the ordinance, of civil rights Commissioners in the City of Minneapolis. There is no evidence that any actions or statement on the part of Commissioner Sykora has or would jeopardize the fair and impartial hearing of this case. As a matter of the record, Commissioner Sykora was Executive Director of Lambda Justice Center from June of 1992 until May of 1994. The case in question was assigned this hearing panel by the Commission Chair, Herman Mulligan, in early October, 1994. From May 1994 until June 1995, Sykora was LJC Director of Legal Education. He terminated his employment with LJC in June of 1995, but continues to consult for the center on a voluntary basis. LJC is a Minnesota nonprofit organization founded on the sole purpose of public education about the law. The organization is not and cannot function as respondent's attorney states, as an "advocacy group". Furthermore, contrary to respondent attorney's allegations there is no connection other than a similarity in names between Lambda Justice Center and Lambda Legal Defense and Education Fund, Inc. The two organizations are not related or affiliated in any way. All of these facts are a matter of public record and could have been ascertained by inquiring of the named organizations or simply by questioning Commissioner Sykora at any one of the prehearing conferences held on this matter. With regard to allegations that Commissioner Sykora's past activities, public statements and his application to serve on the Minneapolis Civil Rights Commission somehow constitute "outside obligations that may interfere with...consideration of the case", respondent's attorney seems to misunderstand the nature of a commissioner's service to the commission. The Minneapolis Civil Rights Ordinance specifically requires that commission members "be persons known to favor the principals of equal opportunity, non-discrimination and objectives of this title" (Chapter 141.20). The commission will not disqualify commissioners from hearing cases simply for satisfying the minimum qualifications for service on the commission. Furthermore, virtually every member of the commission serves a variety of public and private organizations dedicated to advancing the cause of civil and human rights. Were we to follow the respondent's attorney's recommendation, ultimately no commissioners would be permitted to hear cases involving protected classes to which they belong or whose rights they may support. Our rules would have provided for removal if respondent's attorney had demonstrated that Commissioner Sykora has behaved in a manner that has jeopardized this case or either party's right to a fair hearing or that commissioner Sykora has some direct interest in this matter. There is nothing in the record, however, that demonstrates this. The fact that Commissioner Sykora has taken public positions in support of enforcement of existing state and local law, against discrimination, and in support of such unrelated matters as domestic partnership benefits do not begin to suggest that he cannot serve with integrity in the existing case. Respondent's attorney's response to the application by LLDEF to file an amicus brief demonstrates a misunderstanding of the facts. Whether or not their brief is considered, respondent's attorney has made an inaccurate linkage between two totally unrelated organizations and has used this misleading linkage to further his arguments to disqualify Commissioner Sykora. The claim that it is "significant that the LLDEF does not even attempt to deny that is explicitly or implicitly may influence Mr. Sykora's decision-making in this case" is irrelevant considering there is no relationship between the two parties. I have determined that the amicus brief submitted by LLDEF appears relevant and does no prejudice to either party and, therefore, may be made a part of the record, as permitted by the Minneapolis Civil Rights Ordinance, Chapter 141.40 (6). LLDEF is a national organization with expertise in this area and respondent has provided no valid reason to not accept this brief. Any further decisions as to the participation of LLDEF and any other entity in this case shall be left up to the presiding officer. The issue of "outside groups" attempting to influence this hearing process is not relevant to the motion at hand and should be dealt with in other ways as may be deemed appropriate by the presiding officer. To the extent that respondent's attorney has included this in the argument to disqualify Commissioner Sykora, it is without merit. Finally, respondent's attorney requests removal of Commissioner Sykora due to the fact that he has participated in prehearing discussions where "he has heard irrelevant and unfairly prejudicial evidence" and "may be tainted in his consideration of the evidence." This is also without merit as this very role is foreseen and prescribed by the Rules and Procedures for Contested Case Hearings. Presiding commissioners are required, under our rules, to serve as prehearing officers. Respondent's attorney has failed to establish that adherence to the rules would unfairly prejudice his client. Such continuity of roles from prehearing through final hearing is practiced by our Judiciary routinely. Considering the facts as detailed above, I find there is no merit to the motion for removal of the presiding officer in this case and hereby order the case to proceed with the original panel and presiding officer. Dated: July 14, 1995 Tim Cole, Chair ************************************************************************ Yours Truly, Bob Bulthuis bobb@metro2.k12.mn.us