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!