Democratic Minnesota Attorney General Keith Ellison appears to have a habit of selectively defending laws, depending on whether he agrees with the law or not. Multiple times since Ellison was elected in 2018, efforts by leftwing groups to overturn a law—passed by the democratically elected legislature—have been unopposed by the AGs office.
One example is Minnesota’s laws restricting a felon’s ability to vote. A liberal group is suing to overturn that law. Instead of defending Minnesota law, as is his job, Ellison failed to offer a common and powerful defense—which would entail pointing out that the plaintiffs had a “lack of private cause of action.”
This argument can usually strike down any case before it gets started. Without it, any group could sue the state or a local government at any time, even before that group or person is charged under the statue. Under such a system, the laws of the State of Minnesota would be entirely subject to the courts, not the democratically elected legislature or local governments.
Arguing that the liberal group suing the state has a “lack of private cause of action” should stop that lawsuit dead in its tracks and would save the state countless dollars by circumventing meritless legal battles before they even began.
Another example of Ellison’s failure to assert this common and powerful defense is occurring in regard to Minnesota’s abortion laws.
An anonymous abortion doctor, several abortion “nurses” or “midwives,” and a local Unitarian Universalist “church” are suing the state to overturn Minnesota’s 24-hour waiting period for abortions, informed consent laws, parental notification standards, a provision mandating that fetal remains be buried or cremated, and a law that requires all abortions be performed by a doctor.
Ellison failed to raise the defense that these leftwing activists lacked a private cause of action. According to the prolife group, the Thomas More Society, the case could be “easily dismissed, if the Attorney General raised the affirmative defense that, absent legislative authorization, one can’t sue the government in Minnesota courts for violating the Minnesota Constitution; instead, one has to be ticketed or charged with a crime before raising constitutional issues.”
Pro-life groups including the Thomas More Society filed to intervene in the case, in order to assert the defense that they say Ellison should be arguing, earlier this year. The legal effort is being led by attorney Erick Kaardal.
According to Kaardal: “Minnesota has laws on the books that are designed to protect women. The unidentified abortionist and her colleagues cannot sue the state in this matter, as dictated by Minnesota’s constitution, because the laws exist, and they have not been charged with violating those laws. Very simply, in Minnesota, if you do not like a law, you cannot sue to eliminate that law unless you have been charged with violating it. If that law has been used against you, then and only then, do you have a private cause of action that entitles you to sue. While Minnesota’s attorney general represented the state in this lawsuit, his defense against this challenge was superficial, and did not utilize this obvious – and oft practiced by his office – constitutional argument.”
After filing to intervene, the Second Judicial District Court of Minnesota in Ramsey County did not accept the Thomas More Society’s request to intervene to assert the defense that the abortion groups lacked a private cause of action. Kaardal filed an appeal and the oral arguments before the Minnesota Court of Appeals occurred on July 14th.
Willis Krumholz
Willis L. Krumholz is a fellow at Defense Priorities. He holds a JD and MBA degree from the University of St. Thomas, and works in the financial services industry. The views expressed are those of the author only. You can follow Willis on Twitter @WillKrumholz.
