Lawsuits
Norgren v. Minnesota Department of Human Services et al
On February 25, 2022, Upper Midwest Law Center filed suit against the Minnesota Department of Human Services and Commissioner Jodi Harpstead in the Federal District Court of Minnesota on behalf of Joseph Norgren. Norgren, a Christian and Native-American, was a twenty-seven year employee with DHS, and worked as a Security Counselor at the Minnesota Security Hospital.
In August 2020, Norgren was informed by supervisors that, in addition to basic discrimination and harassment training which he had already received, he would be required to complete training on Critical Race Theory and gender identity ideologies. These teachings were opposed by Norgren and contrary to his religious beliefs. When the exemptions Norgren sought from this training were denied, he had no choice but to leave his employment. Norgren’s claims against DHS include racial discrimination, religious discrimination and retaliation, and he seeks damages based on his constructive discharge and loss of compensation.
You may view the complaint here.
Gustilo v. Hennepin Healthcare System, Inc.
On February 6, 2022, Upper Midwest Law Center filed a lawsuit in Minnesota Federal District Court on behalf of Dr. Tara Gustilo alleging racial discrimination, retaliation and reprisal by her employer, Hennepin Healthcare System, Inc. (formerly HCMC). Dr. Gustilo is a Filipino-American doctor whose two children are mixed race Black and Filipino. She Chaired the Obstetrics-Gynecology Department at HHS and took numerous steps to create a welcoming atmosphere and a multi-racial team at HHS, but opposed the racist and divisive CRT ideology of some at HHS, the segregated care models it sought to implement and attempts to insert HHS into the political issue of police defunding and reform. She did so politely and without personal criticism, but was targeted by false allegations of being unsupportive of some staff as a means to retaliate against her for her views and her opposition to what she sees as the racism of CRT. Despite her innocence and her contributions, HHS removed her as Chair and reduced her salary significantly. It is testimony to the absurdity of HHS’s treatment of Dr. Gustilo and the accusation that she was not committed to racial equality, that she was replaced by a White doctor. This lawsuit seeks damages, reinstatement of her Chairmanship and an end to these CRT-derived divisive policies.
You may view the complaint here.
Minnesota Voters Alliance v. Office of the Minnesota Secretary of State
On January 25, 2022, the Upper Midwest Law Center a lawsuit challenging a rule enacted by the Minnesota Secretary of State.
The administrative rule conflicts with the Minnesota statute requiring absentee ballot board members to match voters’ signatures on absentee ballot to their ballot applications. The challenged rule limits the situations in which a ballot may be rejected to only those where the name signed is “clearly” a different name than the name of the voter as printed on the signature envelope.
The administrative rule guts the statutory requirement on absentee ballot signatures and creates a conflict in execution of election law. The rule allows for the acceptance of absentee ballots that do not match the signatory requirements set in Minnesota statute.
This rule challenge will proceed directly in the Minnesota Court of Appeals. You can find a copy of the Petition for a Declaratory Judgment here.
Spann, et al. v. Minneapolis City Council and Mayor Jacob Frey
On August 17, 2020, UMLC, on behalf of eight residents and community leaders, filed suit against the Minneapolis City Council and Mayor Frey in Hennepin County District Court alleging they have failed to uphold their legal duties to fund and employ an adequate police force as required under the Minneapolis City Charter.
The City had projected that the Minneapolis Police Department would only have 669 sworn officers as of June 1, 2022, so the order requires the City to take strong, immediate measures to increase its hiring substantially above what it had planned for 2021 and 2022.
The UMLC is confident that this victory will help restore peace and order for the Petitioners, eight Black and White residents of Minneapolis’ Jordan and Hawthorne neighborhoods on its embattled North Side, and all Minneapolitans. You can view the Order here.
On July 23, 2021, the City of Minneapolis asked the Minnesota Supreme Court for accelerated review of the District Court decision, arguing that the Judge failed to properly interpret the law.
After the Minnesota Supreme Court denied the City of Minneapolis’s petition for expedited review of this case on August 10, 2021, the City appealed to the Minnesota Court of Appeals. On March 14, 2022, the Court of Appeals ruled that, although the City Council was required to fund a number of police pursuant to the City Charter’s requirements, the Mayor has no duty to hire a single police officer.
On May 3, 2022 the Minnesota Supreme Court granted UMLC’s petition for review and expedited the case, and oral arguments were heard on June 9, 2022.
VICTORY: On June 20, the Minnesota Supreme Court agreed with UMLC and reversed the Court of Appeals, ruling that Mayor Frey must hire and maintain at least 731 officers, as set forth in the Minneapolis City Charter, or show cause by June 30, 2022 why he has not. This is a landmark victory for UMLC North Side Plaintiffs and all the citizens of Minneapolis.
Energy Policy Advocates v. Ellison (Ellison I & II)
Ellison I: On August 14, 2019, UMLC filed, with the law firm Government Accountability & Oversight, P.C., a data practices lawsuit on behalf of Energy Policy Advocates against Minnesota Attorney General Keith Ellison for opening his office to attorneys hired, paid for and directed by Democrat activist, Michael Bloomberg, as climate change warriors. UMLC seeks public documents requested under the Minnesota Government Data Practices Act, and withheld by Ellison, to demonstrate this improper practice and seek to have it invalidated. Ramsey County Judge Thomas Gilligan issued an order on July 16 denying our clients’ motion to turn over the documents, and UMLC has appealed to the Minnesota Court of Appeals.
VICTORY: On June 1, 2021, the Minnesota Court of Appeals reversed the District Court’s decision and handed a big victory to Energy Policy Advocates and the Upper Midwest Law Center. The Court of Appeals issued a precedential decision that rejected Attorney General Keith Ellison’s attempt to shield virtually all attorney general data from the public. The opinion requires Ellison to support his attempts to withhold data with real descriptions and evidence, and not broad and general claims of privilege. In addition, the Court of Appeals rejected Ellison’s reliance on broad and vague document descriptions to shield from discovery documents related to discussions with other attorneys general around the country regarding climate change lawsuits and other matters. To read the decision, click here.
On June 23, 2021, Attorney General Ellison appealed the COA decision to the Minnesota Supreme Court, which granted review. On November 2, 2021, UMLC filed its response brief with the Court and oral arguments were heard on January 12, 2022. A decision is expected in summer of 2022.
Ellison II: On July 8, 2020 UMLC filed another action on behalf of Energy Policy Advocates against Attorney General Ellison seeking to obtain documents related to Bloomberg and the challenged attorneys regarding influence in a lawsuit against the energy industry.
Cajune, et al. v. ISD 194 and Baumann
On August 6, 2021, the Upper Midwest Law Center filed a federal lawsuit against the Lakeville Area School District, ISD 194, challenging the posting of Black Lives Matter posters on school property while refusing to post divergent views on race and social justice, such as All Lives Matter and Blue Lives Matter posters.
Lakeville claimed that the “Black Lives Matter” posters on school property were created based on input from some members of the Lakeville community. These posters include the message: “At Lakeville Area Schools we believe Black Lives Matter and stand with the social justice movement this statement represents. This poster is aligned to School Board policy and an unwavering commitment to our Black students, staff and community members.”
When UMLC client Bob Cajune asked that All Lives Matter and Blue Lives Matter posters be posted as well, Lakeville refused, claiming somehow that posters with those messages “were created specifically in opposition to Black Lives Matter” and that those messages “effectively discount the struggle the Black students have faced in our school buildings and that Black individuals face in our society as a whole”.
Not only is Lakeville’s position false, but Lakeville is promoting the political views of some of its community and refusing to allow alternative messages-a classic violation of the First Amendment’s prohibition on viewpoint discrimination in public fora.
Northland Baptist Church of St. Paul Minnesota, et al. v. Governor Tim Walz, et al. (COVID-19 Orders Case)
VICTORY for Minnesota Churches
On Wednesday, May 6, 2020, the Upper Midwest Law Center sued Governor Walz and Attorney General Ellison on behalf of churches and Minnesota business owners who argued that Governor Walz’ COVID-19 shutdown orders were unconstitutional. Almost exactly one year later, on May 5, 2021, the church plaintiffs, Northland Baptist Church and Living Word Christian Center, got a big win when the parties agreed to settle the churches’ claims.
In the settlement, Governor Walz relinquished any authority to treat houses of worship in Minnesota worse than grocery and retail outlets or sports and entertainment venues, which was the case in the first set of COVID-19 orders that shut down Minnesota’s churches—but not Governor Walz’ favored few businesses. Now, if the Governor attempts to “dial back” and reimpose stricter COVID-19 restraints, houses of worship must receive as good or better treatment as Target or the Minnesota Twins.
This victory was made possible when Federal Judge Wilhelmina M. Wright held in an order on March 30 that the State’s COVID orders related to houses of worship were subject to the strictest scrutiny by the Court.
The settlement also preserves the right of appeal by the business plaintiffs in this case, which believe the state’s discrimination against them in favor of big businesses was unconstitutional and an illegal “taking” of their businesses. Judge Wright dismissed their claims, but the settlement provides for appeal of the denial of those equal protection and takings claims to the Eighth Circuit Court of Appeals, which the UMLC believes will reinstate those claims, too.
Click here to view the original complaint and here to view the settlement agreement.
UPDATE:
On June 16, 2022, a three-judge panel of the Eighth Circuit Court of Appeals dismissed our clients’ claims for compensation for Governor Walz’ taking of their property during the COVID-19 shutdown orders. The Court held that Governor Walz had “qualified immunity.” The Court held that qualified immunity protects Governor Walz because it was not “clearly established” that he couldn’t take our clients’ property without paying them compensation. We disagree with this decision, which appears to conflict with the recent Heights Apartments, LLC v. Walz decision by the same Eighth Circuit (a different three-judge panel).
The Court also refused to hear the merits of our clients’ equal protection clause claims, which asked the Court to order Governor Walz to “never again” discriminate between businesses and pick winners and losers using emergency powers. By holding our clients’ claims “moot,” the Court allowed Governor Walz’ illegal conduct to escape judicial review. We believe the Court should have addressed the substance of the case and not allowed Walz to escape answering for his actions.
We will immediately seek rehearing en banc to ask the entire Eighth Circuit to weigh in on these matters. Our petition for rehearing will be filed by June 30.
Huizenga et al. v. ISD 11 and Anoka-Hennepin Education Minnesota
On December 2, 2020, three residents of the Anoka-Hennepin School District sued Anoka-Hennepin Education Minnesota (American Federation of Teachers Local 7007) and the District, seeking to stop teacher union business leave subsidies for union political activities. The lawsuit brought by Upper Midwest Law Center in Minnesota Federal District Court alleges that the Working Agreement between the District and the Union violates the First Amendment, the Minnesota Constitution, and Minnesota’s Public Labor Relations Act. That Agreement requires that the District allow its teachers 100 days of paid leave per school year to work for the Union, and does not fully reimburse the District for teacher pay, thus providing the Union with illegal support.
The union filed a motion to dismiss, and the UMLC and its clients filed a motion for an injunction to stop the ongoing illegal use of local taxpayer dollars. On June 18, the District Court granted the union’s motion to dismiss, and UMLC immediately appealed the decision to the Eighth Circuit Court of Appeals. UMLC expects its appeal to be heard later this year.
O’Neill v. Schowalter
Upper Midwest Law Center filed suit December 30, 2020 on behalf of Minnesota lawmakers, Marion O’Neill and Mark Koran, against Commissioner of Minnesota Management and Budget, Jim Schowalter, and MMB for unlawful implementation of collective bargaining agreements granting State employee pay raises. Under Minnesota law, a majority vote of both the House and Senate must approve the state employee union bargaining agreements for them to be legally implemented. In this case, MMB implemented the agreement even though the Senate failed to approve the bill. Representative O’Neill and Senator Koran seek a writ of quo warranto or declaratory judgment to have the invalid bargaining agreements set aside.
The government filed a motion to dismiss, as usual, and UMLC’s clients filed a motion for an injunction to stop the ongoing implementation. The Ramsey County District Court heard the motions on April 27, and UMLC hopes for a decision by the end of June 2021.
Click here to view the petition.
Todd v. AFSCME Council 5 and Burns v. SEIU Local 284
Upper Midwest Law Center filed two federal lawsuits on March 5, 2021 on behalf of four government employees as they seek to recoup dues taken from them in violation of the Supreme Court’s 2018 Janus decision and stop these unions’ unconstitutional practices. The UMLC represents Marcus Todd, a security counselor for the Minnesota Department of Human Services, and Polly Burns, Rhonda Tomoson, and Diane Gooding, who are food service managers who work with school lunch employees who work to feed students in the Burnsville-Savage-Eagan public schools.
In Todd’s case, AFSCME has gone so far as to use his forged signature to collect dues from him. Todd seeks an injunction against continued deductions and a refund of the dues unlawfully taken from him. Burns, Tomoson, and Gooding have been forced to pay union dues to the SEIU for years, despite never being advised of their First Amendment rights to not join a union and not subsidize political activity with which they disagree. They seek a refund of their dues payments. Click here to view the Todd complaint and related documents, and here to view the Burns, Tomoson, Gooding complaint.
In the Matter of the Clean Cars Minnesota Proposed Rule
On February 22, 2021, Upper Midwest Law Center (UMLC), on behalf of Center of the American Experiment (CAE), submitted initial comments to the Administrative Law Judge opposing the adoption of California’s car dealer mandates that tell dealers what they can and cannot sell to their customers. In addition, UMLC President Doug Seaton appeared at the rulemaking hearing to represent CAE. UMLC argued to the Administrative Law Judge that the Minnesota Pollution Control Agency’s attempt to turn Minnesota into California is illegal under both federal and state law. Click here to see UMLC’s initial comments.
On March 15, 2021, UMLC, again on behalf of CAE, submitted additional comments that show that the adoption of the mandates is bad for Minnesotans and illegal. UMLC also filed reply comments authored by Isaac Orr and Mitch Rolling on CAE’s behalf on June 24, 2021. Click here to view UMLC’s second set of comments, and here to view CAE’s comments.
On July 26, 2021, Governor Walz signed off on the Clean Cars standards, thus completing his end-run around the Minnesota Legislature in dictating car dealer inventories and raising car prices for Minnesotans. Upper Midwest Law Center is discussing an appeal with interested parties.
In the Matter of Xcel Energy’s 2020-2034 Upper Midwest Integrated Resource Plan
On February 10, Upper Midwest Law Center (UMLC), on behalf of Center of the American Experiment, filed comments with the Minnesota Public Utilities Commission (PUC) objecting to Xcel Energy’s plan to prematurely retire coal plants and replace them with new wind turbines, solar panels and natural gas plants for nominal, purely symbolic climate gains. These proposed changes would cost every ratepayer in Minnesota an additional $1,428 per year, every year, until 2051 ($42,840 in total), according to Isaac Orr and Mitch Rolling who prepared the comments. Orr, a policy fellow specializing in energy and environmental policy at American Experiment, points out that the cost of Xcel Energy’s Plan far outweighs the projected result of averting only 0.00039 degrees in temperature increase by 2100. Click here to view the filing.
The comment period for this plan has been extended due to Xcel’s request for additional time to respond to UMLC/CAE’s and other’ comments. Xcel’s response is due June 25, 2021. UMLC will also represent American Experiment in any applicable appeals or challenges to a decision by the PUC.
Snell, et al. v. Governor Tim Walz, et al.
On August 20, 2020, sixteen Minnesota citizens, business owners and churches filed suit in Ramsey County District Court to invalidate Governor Walz’s Executive Order requiring most Minnesotans to wear masks in indoor public spaces. The Petitioners, represented by Upper Midwest Law Center, note that only the state legislature has the power to make laws, and assert that Walz has exceeded his authority by overriding an existing Minnesota statute that makes it unlawful to wear a mask in public. Petitioners also allege that the mask mandate violates their freedom of speech and religious rights under the First Amendment to the U.S. Constitution and Article I, Section 16 of the Minnesota Constitution.
The lawsuit, brought as a quo warranto action, asks the court to order that Walz and co-Respondents Attorney General Ellison and Dakota County Attorney Backstrom show that the mask mandate and its enforcement are consistent with state law or to issue an injunction prohibiting the enforcement. The Ramsey County District Court dismissed the lawsuit, and UMLC appealed that decision to the Minnesota Court of Appeals in May 2021. UMLC filed its principal brief showing why the mask mandate violates the Minnesota Constitution on June 14, 2021, which you can view here.
The Court of Appeals issued an opinion in December 2021 declining to decide Snell on the merits reasoning that the governor had ended the mask mandate after UMLC filed its appeal. You can view the full brief here.
On February 23, 2022, the Minnesota Supreme Court granted Upper Midwest Law Center’s petition for review. On April 8, 2022, UMLC filed a brief with the Court, arguing that UMLC’s mask mandate challenge must be decided on the merits because Governor Walz has refused to agree not to enact another mask mandate on Minnesota.
Scheff Logging & Trucking, Inc. and Associated Contract Loggers & Truckers of Minnesota, Inc. v. Shawn Ray Etsitty and John Does (The Enbridge Pipeline Sabotage Case)
Hoekman v. Education Minnesota, et al.
Another post-Janus case representing Minnesota teachers, Hoekman, is well underway in the federal District of Minnesota against the teachers’ union. Our plaintiffs wish to recover dues paid to the union they do not support.
Prokes/Piekarski v. AFSCME Council 5, et al.
Brown et al. v. AFSCME Council 5 and Fellows et al. v. MAPE
On May 8, 2020, Upper Midwest Law Center, Liberty Justice Center and National Right to Work Legal Defense Foundation filed Brown et al. v. AFSCME Council 5 and Fellows et al. v. MAPE, in Minnesota Federal District Court seeking return of $19 million in past dues withheld from public employees by the unions as a mandatory condition of employment. Plaintiffs in the class action lawsuits assert that, based on the 2018 Janus case in which the Supreme Court determined such mandatory dues deductions are a violation of the employees’ First Amendment rights, their past dues were unlawfully withhold and must be refunded.
As expected, the Hoekman, Prokes, Brown and Fellows cases were dismissed by the District Court, and our public employee clients appealed to the United States Court of Appeals for the Eighth Circuit. We are hopeful that the Eighth Circuit will reverse these decisions and reinstate our public employee clients’ claims for recovery of unconstitutionally withheld dues payments to government unions. These cases and several others around the country could ultimately be decided by the United States Supreme Court.
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