October 1, 2012

The MN BBC et. al. appeal was argued in the Minnesota Court of Appeals on September 27, 2012 to a three judge panel. We were honored by a large and attentive group of community supporters who filled the appellants’ side of the courtroom, compared to the attendance of only four men in suits, including Charles Nauen, on our opponent’s side of the spectators’ gallery. Nauen, specially trained by the Israeli Ministry of Foreign Affairs to oppose BDS, is the Minneapolis attorney hired by Israel to monitor our lawsuit following recognition by Israel Bonds that our lawsuit could affect bond investments by 30 other states. Nauen has previously served as Governor Dayton’s attorney.

Unlike Judge Marrinan, the lower court judge who dismissed our case, the appellate judges were talkative, asking questions about standing, the meaning of the language in the Minnesota investment statute and even about the difference between Counts 2 and 3. One question that was asked was whether Minnesota courts have the power to enforce treaties (like the Geneva Convention). Although it was difficult to discern from the judge’s questions on which side of the issues they might fall, Judge Peterson, the only judge with significant legislative experience, asked a key question which the SBI’s attorney not only failed to answer but instead sidestepped in a visibly evasive manner. The question was central to our absurdity argument, that Minnesota’s statutory restrictions limiting investment in foreign governmental bonds to Canadian Bonds repaid in US Dollars can only be reconciled with the “international securities” investment provision if it excludes Israel Bonds. It was apparent that Judge Peterson understands the Minnesota statute in a manner that favors our position.

However, we need 2 out of the 3 judges to vote in our favor and, as we all know, the political culture in America has long tolerated exceptional impunity when it comes to Israel’s violations of international law and the human rights of Palestinians. A recent article on OpEdNews by two MN BBC members adroitly examines how this impunity has penetrated all branches of our government and the media. It is a poignant reminder that it is more important than ever to persist in our struggle for justice.

The Court of Appeals will issue a decision within 90 days of the oral arguments, so stay tuned!

MINNESOTA BREAK THE BONDS CAMPAIGN APPEALS

DISMISSAL OF ISRAEL BONDS LAWSUIT

[St. Paul] MN Break the Bonds Campaign (MN BBC), a statewide campaign aimed at stopping the State of Minnesota from investing in Israel’s human rights and international law violations, along with several other individual and organizational plaintiffs, will file an appeal on the second anniversary of Israel’s attack on the Gaza Aid Flotilla, May 31, 2012. The appeal* asks the Minnesota Court of Appeals to reverse a lower court ruling dismissing the group’s lawsuit against the State Board of Investment (SBI).

The lawsuit, filed in late 2011, contends that the SBI’s investments of millions of dollars in Israel Bonds are unlawful and imprudent. It alleges that the SBI’s statutory authorization to invest public employee pension funds, found in Section 11A.24 of the Minnesota Statutes, does not authorize the SBI to invest in Israel Bonds and that the SBI has done so unlawfully and with impunity. The lawsuit further alleges that the SBI’s investments in Israel Bonds are providing substantial material support for Israel’s human rights violations, including its illegal settlement activities in the occupied Palestinian territories which have been universally condemned as violations of the Fourth Geneva Convention. The lawsuit further alleges that the SBI’s material support of Israel’s human rights abuses exposes the SBI and ultimately Minnesota taxpayers to lawsuits brought against them by victims of Israel’s human rights abuses.

Judge Margaret Marrinan had ruled in the lower court that the plaintiffs lacked standing to bring the lawsuit, that the language of the Minnesota Statute in question allowed the SBI to invest in any governmental bond of any country in the world; that this is a “political question” best left to other branches of government to decide; and that merely investing millions of dollars in the government bonds of another country, regardless of that country’s human rights record, is not sufficient to prove that the SBI is aiding and abetting human rights violations.

MN BBC believes that the lower court ruling is seriously flawed and that the appeal has exceptional merit. Minnesota law gives taxpayers and state pension plan beneficiaries standing to challenge the SBI’s investment decisions. MN BBC includes members meeting both criteria. The Minnesota Statute in question clearly does not permit the SBI to invest state funds in Israel’s government bonds and making an exception for Israel allows for other absurd exceptions. Further, the lawfulness of the SBI’s fiscal decisions is subject to court review. It is not a “political question.” Finally MN BBC contends that providing substantial material assistance to Israel’s illegal activities is sufficient to expose Minnesota and its taxpayers to claims and lawsuits.

MN BBC is a group of Palestinians, Jews, Christians, Muslims, students, professionals, parents, community members and allies working together to promote equality, justice and human rights by educating Minnesota communities about injustices being suffered by Palestinians. MN BBC believes that the people of Minnesota have the moral obligation to make sound investments that will not aid the oppression of any race, creed or people. Copies of the lawsuit and the appeal are available to the press and are linked below.

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*Click these links to view MN BBC’s official Notice of Appeal and Statement of Case.

Photo credit: urbanchristiannews.com

On March 5, we packed the courtroom to overflowing with over 50 supporters showing support for our lawsuit that asks the Court to order the Minnesota State Board of Investment (SBI) to divest from Israel Bonds. The purpose of the hearing was to allow each side to argue two competing motions to Judge Marrinan; the SBI’s motion to dismiss our Complaint and our counter-Motion for Summary Judgment.

Judge Marrinan allowed an hour for the lawyers on both sides to argue their positions while listening attentively. The SBI’s attorney, an Assistant Minnesota Attorney General (AG), focused her argument in support of dismissal on two points. First, that the statute that authorizes the SBI to invest state retirement funds permits it to invest in Israel Bonds. Secondly, she argued that the question of Israel Bond investments is a political question best left for the policy makers.

Our attorney, Jordan Kushner, argued that the state statute expressly restricts the SBI’s investment in foreign government bonds to Canadian bonds, that time-honored canons of statutory construction prevent the SBI from attempting to find any authorization in the statute permitting the SBI to invest in Israel Bonds and that investment in Israel Bonds illegally aids and abets violations of the Geneva Convention. Our attorney argued that the legality of the SBI’s Israel Bond investments is a question of law for the Court, not the politicians. He also presented a chart showing that the millions in state retirement funds that the SBI has invested in Israel Bonds is singularly disproportionate to other investments.

After Judge Marrinan closed the arguments, she asked each side to prepare proposed orders and to file them simultaneously on March 19. Our proposed order can be read here: MN BBC_Proposed_Order. The State’s was filed as two separate documents, the first in support of their Motion to Dismiss the Case and the second opposing our Motion for Summary Judgment: SBI_Proposed_Order_Document#1 and SBI_Proposed_Order_Document#2.

The judge will use language from the proposed orders to write her ruling. If the judge adopts our language and signs our proposed order, the state will be ordered to divest immediately. If she doesn’t, we will carefully consider our next steps knowing that we have already made a difference. We have put Minnesota’s complicity in Israel’s human rights violations front and center in a Minnesota court of law. Stay tuned as the case proceeds, and thanks to all who came out for the first hearing!

Photo: pioneerphotography.com