On February 26, 2009 Rice County District Court Judge Bernard Borene issued his Order [PDF, 21 pages] regarding SaveWCAL's Petition To Redress Breach Of Trust and St. Olaf College's and MPR's requests for Summary Judgement.
The judge issued a Summary Judgement in which he ruled against SaveWCAL on all points.
The ruling of Judge Borene is in direct contradiction to the charitable trust principles used and decisions made by Rice County District Court Judge Gerald Wolf (ret.) in the preceeding case.
The SaveWCAL board will now have to determine whether or not to appeal Judge Borene's decision.
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Isn't is interesting that Judge Wolf, who was retiring and who didn't have to face re-election, saw the charitable trust issues and reprimanded the Attorney General?
In this case, the decision was made by a sitting judge who will be up for re-election in a region where St. Olaf and MPR are powerful forces.
Makes ya wonder…
Perhaps it's time to simply appoint judges and take the election equation out of the picture so that they serve the law and people without worrying about their job security and the complications that might bring to their decisions.
SaveWCAL responds:
Judge Bernard Borene's current term expires in 2011 when he will be 66 years old. He was appointed by Governor Perpich in 1984, so he has a substantial PERA retirement at this point. It is likely that he will retire in 2011 and will not seek re-election to another six year term.
Although it is possible that a concern about community reaction may have had at least a subconscious effect, the more likely explanation is that he viewed the case from a completely different perspective than Judge Gerald Wolf — a phenomenon that is, unfortunately, familiar to lawyers and explains in part why lawyers cannot guarantee the outcome of litigation.
Concentration of power in the public sector (in this case public radio) can be just as dangerous and destructive as in the private sector. Diversity and competition can make public radio stronger and even more robust.
My donation is on the way.
This isn't over until Public Radio is returned to the Public . . .
and charitible giving is returned to the designated charity.
This is a most unsettling misappropriation of justice. Shame on Judge Borene.
"Never say die…"; I'm for continuing this effort, it's justice we seek – and we can get it, measure by measure only if we persist.
Already, we have given the public a greatly improved perspective on how Charitable Trusts "really matter" (and charmingly hoodwink the unwary innocents) in Minnesota and more will now be saved the anguish the WCAL experience has given so many. That is a step in measures, somewhat akin to the first man on the moon ("one small step for man, and a giant leap for mankind") and as such – surely not a meager measure when you consider all the future potential our continuing, growing efforts will produce. Give out the word; let's join "Mr. Punch" and step up for another round…
Sorry to read of the Judge's ruling here. I would appeal it, but it's costly, etc.
I am personally concerned with the tenor of the situation as I read about how current Prexy Anderson was ordering [board] members of SaveWCAL be denied Christmas Festival tickets. Shabby treatment of those who happen to be passionate about a cause which he and others may disagree with — but people who wish to continue to support the music and other programs of the college
This leads me to wonder on what other matters involving the administration, backers here of SaveWCAL and alums who have kids of college age.
I am wondering, for example, about a student who had top grades at a large high school, had a parent, uncles and many others of note in the greater family who are StOlaf alums.
I am wondering is the admissions office is told or give lists of SaveWCAL supporters to find out who has kids or relatives who wish to apply to StO, but will be nixed privately (behind the scenes) as a way of getting back at any "trouble makers" that the college sees as a threat of sort so that the SaveWCAL group fades away quick. A blacklist, of sorts.
I am most distressed about this. I would not put it past the devious board and administration.
I hope this is not the truth and I hope that someone could seek to find out the truth about any possible coverups as denials from the college would come, I am certain, in an overt way to stop any questioning on this.
I hear there is a newcomer in admissions and he is unfamiliar with some of the legacy inclusions apparently. I hope he is called out or leaves. It seems it's still a man's world in admissions and tried and true BS…
SaveWCAL responds:
We have no knowledge of the decision-making process used by St. Olaf Admissions. The current Dean of Admissions, Derek Gueldenzoph, is not a St. Olaf alum. However, the Admissions Office is overseen by Vice President and Dean of Enrollment Michael Kyle '85, who has worked in financial aid and admissions at St. Olaf since the mid-1980s.
During that same time, there have been many changes at St. Olaf in Admissions. Admissions Counselors are now called Admissions Officers and Assistant and Associate Directors have turned into Assistant and Associate Deans. Long gone are the days when almost the entire professional admissions staff were St. Olaf alums. Now almost half the professional staff in the Admissions Office did not graduate from St. Olaf. Approximately five of the eight alumni staff members graduated within the last six years.
These findings are amazingly contrary to Judge Wolf's findings. In particular, the idea that WCAL was not a charitable trust because "it never filed as such with the IRS" is either obtuse or pigheaded. The idea that SaveWCAL does not have standing is mystifying.
The ruling is such an about-face from Judge Wolf that it begs to be appealed.
Just the fact that two (2) judges on the same subject matter, in hailing distance of one another in the same countryside – leave alone the exact courthouse – have apparently diametrically opposite views on Charitable Trust responsibilities is a spur to take this matter to the next level. From my personal observation at the initial hearing to this action brought by SaveWCAL, the fine Judge arrived in the Courtroom a few minutes late with all appearances that he had just been awakened from a short nap. He announced with no apologies that he was not familiar with the details of the matter at hand and had not had the time to review all the documents. Now, having had ample time to acquaint himself with all the particulars – he seems to still be "asleep, exhausted, or overworked" and lacking the intellectual stamina of his associates preceding him in this matter. There's no merit in accepting his findings which appear to lack or consider the precedents, vigorous thought and exhaustive, investigative work of Judge Wolf; at it's worst – in this issue we now have two responses in contrary directions, so – we need a third opinion, plain and simple.
Thinking over, reviewing the issues and events which have passed before us in the SaveWCAL matter, it seems that we still have the WCAL Radio Mission, and the great, well-motivated group; why not focus some energy on resuming The Mission without funding the varied adversaries – using new venues such as Internet web technology to "stream out The Mission" in satisfaction of our hearts, and souls? It seems someone once made the point, "a crisis is an awful thing to waste – when it can fuel action…" Thus, why not expand this effort to both: an Appeal in Court, and add – say "Web-based WCAL"!
The February 26th, 2009 summary judgement marks the end of the first half. I anticipate that Judge Borene's decisions will be as closely examined by SaveWCAL as they would have been by St. Olaf College and Minnesota Public Radio had SaveWCAL's petition been received favorably. I'm hoping that SaveWCAL has enough funds for the third and fourth quarters in appeal venues. Seeking justic is expensive, painful and satisfying.
Bubbling up and bouncing about, all the time, here is the issue of "money"; and – of course that's at the core of this matter for the main part, for some, and we all know who "they" are. Yet, the very, most vital issue here in the final analysis is – trust. And trust based on a system of rules, principles, morality, ethics and "Law?". Unless the SaveWCAL Redress of Breach of Trust action is openly, satisfactorily resolved very soon – all such confidence in Minnesota Charitable Trusts will be forever lost, at least to my generation. The following generations are seemingly ever less "trusting" already; so – it seems a false economy to weigh just the cost of further litigation here, for real justice. A more weighty question – especially for the future, here – will be: What is the cost of trust, forever lost? Or, are we already past that point – here? It's our decision; certainly – not "theirs".
Whatever next unfolds in the SaveWCAL saga, it would seem helpful to future estate planners to have an overview of the experience financial contributors/supporters of WCAL have here endured. Specifically, they would become more wary that planned bequests, and gifts of any kind in like manner may quite readily end up used for something else, or – spent as "re-purposed funds" – no matter earlier intents, understandings, and formal documentation to the contrary. If an informational pamphlet, a brief overview of the WCAL Radio history were prepared and hosted here on the web as a case – in example, it could caution those who now may regard Minnesota Charitable Trust Law as trustworthy for planning. At a minimum, the public ought to be advised, from this – as on new car price stickers: "Your mileage may vary…" Of course, then we'd hope they'll NOT expect to achieve the "promised mileage" and "know" what probably WILL happen "when you actually do put your pedal to the metal…", ( or – as when you put that pen to the paper). Let's see if we can't get the message out on this; why should we let this happen to others, again, and again!