Open Letter

The Last of the Common-Sense Minnesotans

One of the state’s great lawyers leaves a legacy of moderation and fairness.

The Last of the Common-Sense Minnesotans
To: Frank Claybourne
Dear Frank,
As your hometown newspaper, the Albert Lea Tribune, put it, you laid aside your earthly chores on July 28 at the age of 95. Over the past three and a half years, we frequently discussed what should be said at your memorial service, and you made me promise that I would not pray over you. That promise has now been fulfilled, but I never promised I wouldn’t send you this letter.
You were counsel to the Republican Party of Minnesota for many years and counsel to many Republican campaigns, including those of presidential candidates (Harold Stassen), senatorial candidates (Rudy Boschwitz), and many others. I think you were attracted to hiring a young, Gene McCarthyite attorney like me because we shared a belief that at times our community, operating through its government, could achieve great things for the common interest.
As one example of this, the old, common-sense Minnesota Republican Party pioneered support for public education in this state. Governor Elmer Anderson was the leader in this regard, and always pointed out that Minnesota’s first income tax was adopted to support public education. He was, of course, one of your close friends.
In our first days together practicing law, the Vietnam War was a raging controversy. You and I were generally in agreement regarding the futility of that American misadventure. Your views applied equally to the American misadventure in Iraq.
You taught many of us how to become common-sense lawyers: Tell a client when he is wrong, tell the jury the truth, and tell the judge— respectfully—the law. The many years you practiced law constitute an amazing career. You became note editor of the Minnesota Law Review (1943), president of the Ramsey County Bar Association (1972), and president of the Minnesota State Bar Association (1979). Our state supreme court frequently appointed you to serve in posts including the Committee on Criminal Procedure, which you chaired for more than a decade.
My casual search in the Westlaw- Next database shows more than 40 major cases in which you were involved, most of them in federal court, and many of them involving important issues of commercial law. The Claybourne client list reads like a Who’s Who of commercial litigation; White Way Sign, Mutual of Omaha, General Electric, Minnesota Mutual Life Insurance Company, Hart Ski, Sperry Univac, First Trust, and Kawasaki Motors Corporation. You have left behind an entire generation of lawyers who learned at your knee, but I am not sure they learned all that you had to teach.
No discussion of your impact on the practice of law would be complete without outlining the famous Electronic Numerical Integrator and Computer (ENIAC) patent litigation. The seminal patents for electronic data processing were first granted in 1946 and eventually passed to Sperry Rand Corporation. The ENIAC patent portfolio licenses formed the basis of the data processing technology used by IBM in 1956. By 1967, companies in the electronic data processing field either had to pay a royalty for the use of ENIAC patents or, allegedly, not compete. The ENIAC machine itself had been used by Edward Teller for calculations related to the development of the hydrogen bomb. For this reason, many of the counsel who worked on that part of the lawsuit had to get security clearances.
Honeywell sued to invalidate the ENIAC patents on March 26, 1967, a case later consolidated in Minnesota as Honeywell, Inc. v. Sperry Rand Corp. and Illinois Scientific, Inc., 1973, W. L. 903. You were counsel for Sperry Rand. Trial commenced before the court on June 1, 1971, and continued with very few interruptions until March 13, 1972—more than 200 days in court. The trial transcript exceeds 20,000 pages. The case marked one of the seminal moments in the development of the computer age, and was probably the first lawsuit to feature the use of automated databases during trial.
Years earlier, following a Ramsey County Bar Association meeting in the bar of the old St. Paul Athletic Club, you were pulled into a heated argument by an elected Republican (only a sense of courtesy prevents me from using his name now). Among other things, he criticized your support of Steven Maxwell in a campaign for Congress some years prior. Maxwell had since become the first black judge appointed to the district bench, and this individual’s comments centered on his opposition to that development. I remember you looking at him and saying in even tones, “It is the Republican Party, the party of Lincoln.”
Your life was always about common sense and treating people fairly. When you were 81 years of age, you responded to a neighbor’s telephone call during a storm in the middle of the night, which had knocked out her electricity. She had forgotten to tell you that the basement stairway had been removed as part of a remodeling project. When you went into the darkened house, you stepped into the open hole and fell to the basement floor, suffering severe injuries, including a broken back and a shattered pelvis. You had to learn to walk again.
After your wife, Ingrid, died, you told me it was time for you “to check out” because you could no longer be a contributing member of society. You said further medical expense was a waste. By the same token, you thought that burying people in the ground took up valuable land and was also a waste. So at your memorial service, your ashes were scattered at your cabin on the shores of Coon Lake.
Many of us fear that with your passing, we have lost the last, or at least one of the last, of the great commonsense Minnesotans. We have certainly lost one of the state’s great lawyers, and a person who loved the law, loved Minnesota, loved his family, and knew how to live every minute of his 95 years. Well, Frank, I am sorry to end this letter. I won’t pray over you, but I will be one of many who remember you.
Vance K. Opperman,
Forever Your Associate
Vance Opperman (vopperman@keyinvestment. com) is owner and CEO of MSP Communications, which publishes Twin Cities Business.


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