Petition for Writ of Certiorari — Minnesota Chapter of Associated Builders and Contractors, et al., Petitioners v. Keith M. Ellison, Attorney General of Minnesota, et al.

Supreme Court briefJan 15, 2026

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No. 25-____

IN THE

Supreme Court of the United States

————

MINNESOTA CHAPTER OF ASSOCIATED BUILDERS

AND CONTRACTORS, NATIONAL FEDERATION OF

INDEPENDENT BUSINESS, INC., AND

LAKETOWN ELECTRIC CORPORATION,

Petitioners,

KEITH M. ELLISON, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF MINNESOTA,

NICOLE BLISSENBACH, IN HER OFFICIAL CAPACITY AS

THE COMMISSIONER OF THE DEPARTMENT OF

LABOR AND INDUSTRY, TIMOTHY WALZ, IN HIS OFFICIAL

CAPACITY AS GOVERNOR OF THE STATE OF MINNESOTA,

Respondents.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

JACOB D. MULTER

LITTLER MENDELSON

One Century Tower

265 Church Street

Suite 300

New Haven, CT 06501

THOMAS R. REVNEW

Counsel of Record

KURT J. ERICKSON

LITTLER MENDELSON, P.C.

1300 IDS Center

80 South 8th Street

Minneapolis, MN 55402

(612) 630-1000

trevnew@littler.com

Counsel for Petitioners

January 15, 2026

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTION PRESENTED

Minnesota enacted a law prohibiting employers

from requiring employees to attend meetings in which

the employer discusses its views on political or

religious matters – otherwise known as “captiveaudience” meetings – and requiring them to post a

notice written by the State notifying employees of this

law. The law clearly violates this Court’s precedent

declaring that employers have a First Amendment

right to communicate their views to employees.

Petitioners brought suit in federal court against

Respondents who maintain enforcement authority

over the law. Reversing the district court, the Eighth

Circuit ordered dismissal of Petitioners’ suit, thereby

conflicting with this Court’s holding in Whole

Woman’s Health v. Jackson, 595 U.S. 30 (2021), and

in further conflict with the Fifth, Sixth, Ninth, Tenth

and Eleventh Circuits.

The question presented is whether state

officials may disclaim enforcement authority over a

law to avoid federal court review of the law’s

constitutionality where the statute places clear

enforcement authority over, or an obligation to

enforce, the law with those state officials.

PARTIES TO THE PROCEEDINGS

Petitioners in this Court (plaintiffs-appellees in

the Court of Appeals) are the Minnesota Chapter of

Associated Builders and Contractors, the National

Federation of Independent Business, and Laketown

Electric Corporation.

Respondents in this Court (defendantsappellants in the Court of Appeals) are Keith Ellison,

in his official capacity as the Attorney General of the

State of Minnesota; Nicole Blissenbach, in her official

capacity as the Commissioner of the Minnesota

Department of Labor and Industry; and Timothy

Walz, in his official capacity as Governor of the State

of Minnesota.

iii

CORPORATE DISCLOSURE STATEMENT

Petitioner Minnesota Chapter of Associated

Builders and Contractors does not have a parent

corporation and no publicly held company owns 10%

or more of its stock.

Petitioner Laketown Electric Corporation does

not have a parent corporation and no publicly held

company owns 10% or more of its stock.

Petitioner National Federation of Independent

Business does not have a parent corporation and no

publicly held company owns 10% or more of its stock.

STATEMENT OF RELATED PROCEEDINGS

There are no directly related proceedings.

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED.......................................... i

PARTIES TO THE PROCEEDINGS ......................... II

CORPORATE DISCLOSURE STATEMENT ......... III

STATEMENT OF RELATED PROCEEDINGS.......IV

PETITION FOR WRIT OF CERTIORARI .................1

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..............................2

II.

INTRODUCTORY STATEMENT ....................2

Minn. Stat. § 181.531 and

Respondents’ Enforcement

Authority ..................................... 8

Proceedings in the District Court

................................................... 11

Proceedings in the Court of

Appeals ...................................... 16

REASONS FOR GRANTING THE

WRIT ...............................................................18

TABLE OF CONTENTS

(CONTINUED)

PAGE (S)

The Eighth Circuit’s Holding

Conflicts with this Court’s Ruling

in Whole Woman’s Health, and

Rulings In Numerous Other

Circuits As to Attorney General

Ellison........................................ 19

The Eighth Circuit’s Ruling Also

Conflicts With this Court’s

Ruling in Whole Woman’s Health,

the Decisions of Other Circuits,

and its Own Prior Holdings as to

Commissioner Blissenbach and

Governor Walz. ......................... 26

Commissioner Blissenbach

Has a Direct Connection to

Enforcement of the Act .. 26

Governor Walz Has a

Direct Connection with

Enforcement of the Act .. 29

This Case Presents a

Fundamental Question About

Federal Courts’ Power to Protect

Constitutional Rights in the Face

of a State’s Intentional Effort to

Frustrate Federal Review......... 33

CONCLUSION ..........................................................37

vii

TABLE OF AUTHORITIES

PAGE (S)

Cases

281 Care Comm. v. Arneson (Care

Committee II),

766 F.3d 774 (8th Cir. 2014 ................................. 30

Anderson v. Martin,

375 U.S. 399 (1964) .............................................. 35

Ass’n des Eleveurs de Canards et d’Oies

du Quebec v. Harris,

729 F.3d 937 (9th Cir. 2013) ............................ 2, 21

Balogh v. Lombardi,

816 F.3d 536 (8th Cir. 2016) .......................... 30, 31

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) ............................................ 4, 14

California Chamber of Com. v. Bonta,

No. 2:24-CV-03798-DJC, ___

F.Supp.3d ___, 2025 WL 2779355

(E.D. Cal. Sept. 30, 2025) .................................... 25

Chamber of Commerce v. Brown,

554 U.S. 60 (2008) .................................... 10, 12, 34

Church v. Missouri,

913 F.3d 736 (8th Cir. 2019) .......................... 30, 31

Cooper v. Aaron,

358 U.S. 1 (1958) .................................................... 7

viii

TABLE OF AUTHORITIES

(CONTINUED)

PAGE (S)

Doe v. DeWine,

910 F.3d 842 (6th Cir. 2018) ..................... 3, 15, 27

First Nat’l Bank of Boston v. Bellotti,

435 U.S. 765 (1978) .............................................. 11

Gilmore v. City of Montgomery,

417 U.S. 556 (1974) .............................................. 34

NLRB v. Gissel Packing Co.,

395 U.S. 575 (1969) .......................................... 3, 12

Illinois Policy Institute v. Flanagan,

No. 24-cv-06976, 2025 WL 0900516

(N.D. Ill. Sept. 30, 2025) ...................................... 21

Jones v. Jegley,

947 F.3d 1100 (8th Cir. 2020) ........................ 15, 27

K.P. v. LeBlanc,

729 F.3d 427 (5th Cir. 2013) ................................ 21

King v. Youngkin,

122 F.4th 539 (4th Cir. 2024) .............................. 24

Kitchen v. Herbert,

755 F.3d 1193 (10th Cir.2014) ......................... 2, 30

Los Angeles Cnty. Bar Ass’n v. Eu,

979 F.2d 697 (9th Cir. 1992) ........................... 3, 29

TABLE OF AUTHORITIES

(CONTINUED)

PAGE (S)

Minnesota Chapter of Associated

Builders & Contractors v. Ellison,

153 F.4th 695 (8th Cir. Sept. 3, 2025) .. 1, 6, 16, 20,

26, 27, 28, 29

N.C. Right to Life, Inc. v. Bartlett,

168 F.3d 705 (4th Cir. 1999) ................................ 22

Nat’l Rifle Ass’n of Am. v. Vullo,

602 U.S. 175 (2024) .................................... 3, 14, 35

Okpalobi v. Foster,

244 F.3d 405 (5th Cir.2001) ............................. 2, 30

P.C. v. Pryor,

180 F.3d 1326 (11th Cir. 1999) ........... 3, 23, 24, 30

United States v. Peters,

5 Cranch 115 (1809) ....................................... 24, 36

Prescott Indus. Products Co., 500 F.2d 6,

10 n.13 (8th Cir. 1974) ......................................... 12

Reitman v. Mulkey,

387 U.S. 369 (1967) .............................................. 34

Riley’s Am. Heritage Farms v. Elsasser,

No. 23-55516, 2024 WL 1756101 (9th

Cir. Apr. 24, 2024) ................................................ 22

San Diego Building Trades Council v.

Garmon,

359 U.S. 236 (1959) ........................................ 10, 34

TABLE OF AUTHORITIES

(CONTINUED)

PAGE (S)

Universal Life Church Monastery

Storehouse v. Nabors,

35 F.4th 1021 (6th Cir. 2022) .................... 2, 21, 31

Whole Woman’s Health v. Jackson,

595 U.S. 30 (2021)

.. i, 2, 5, 7, 13, 15, 18, 19, 20, 22, 24, 25, 26, 28, 29,

33, 35, 36

Worth v. Jacobson,

108 F.4th 677 (8th Cir. 2024) ............................. 26

Ex parte Young,

209 U.S. 123, 28 S.Ct. 441, 52 L.Ed.

714 (1908)

... 2, 5, 13, 14, 15, 16, 18, 20, 21, 22, 23, 24, 25, 26,

27, 28, 29, 30

Statutes

820 ILCS 57/15 (2024) ............................................... 25

28 U.S.C. §§ 1254(1) and 2101(c) ................................ 1

29 U.S.C. § 158 ............................................................ 1

29 U.S.C. § 158(c) .................................................. 3, 12

Alaska Stat. § 23.10.450 (2024) ................................ 25

Cal. Bus. & Prof. Code § 22949.61 et seq. ................. 35

Cal. Lab. Code § 1137 (2024) .................................... 25

TABLE OF AUTHORITIES

(CONTINUED)

PAGE (S)

Conn. Gen. Stat. § 31-51q (2022) .............................. 25

Fla. Stat. § 1006.205 ................................................. 35

Florida’s Fairness in Women’s Sports

Act ......................................................................... 35

Governor’s act ............................................................ 32

Haw. Rev. Stat. § 377-6(14) (2024) ........................... 25

Me. Stat. tit. 26 § 600-B (2023) ................................. 25

Minn. Stat. § 4.04 ................................................ 10, 28

Minn. Stat. § 8.06 ................................................ 10, 28

Minn. Stat. § 8.31, subd. 1 .................................... 9, 20

Minn. Stat. § 175.20 .................................................... 9

Minn. Stat. § 181.531 .......................................... 1, 3, 8

Minn. Stat. § 181.531, Subd. 2.................................... 9

Minn. Stat. § 181.531, subd. 3(a) .............................. 12

Minn. Stat. § 181.1721 .......................................... 9, 10

Mo. Stat. § 600.015 .................................................... 31

N.J. Stat. § 34:19-10 et seq. (2025); N.Y ................... 25

National Labor Relations Act .... 3, 4, 7, 10, 11, 12, 22,

33, 34

xii

TABLE OF AUTHORITIES

(CONTINUED)

PAGE (S)

NLRA Section 8(c) ........................................... 3, 10, 12

ORS § 659.785 (2009) ................................................ 25

R.I. Gen. Laws § 28-7-50 (2025) ................................ 25

Vt. Stat. Ann. tit. 21, § 495o (2023) .......................... 25

Wash. Rev. Code § 49.44.250 (2024) ......................... 25

Other Authorities

First Amendment i, 1, 2, 3, 4, 7, 11, 12, 16, 19, 21, 22,

25, 27, 33, 34

Sixth Amendment ..................................................... 31

Eleventh Amendment ........................... 2, 5, 13, 15, 21

Fifteenth Amendment ............................................... 34

Hailey Martin, S.B. H(8): Battle of the

Bills and Private Enforcement, 92 U.

Cin. L. Rev. 821 (2024) ........................................ 35

https://www.dli.mn.gov/posters .................................. 8

Lab. Law § 201-D(2)(e) (2023)................................... 25

Supreme Court Rule 10 ............................................... 1

PETITION FOR WRIT OF CERTIORARI

Petitioners Minnesota Chapter of Associated

Builders and Contractors, National Federation of

Independent Business, Inc., and Laketown Electric

Corporation, respectfully petition for a writ of

certiorari to the United States Court of Appeals for

the Eighth Circuit.

OPINIONS BELOW

The district court’s order denying Respondents’

Motion to Dismiss (Pet.App. 17a-58a) is unreported.

The Eighth Circuit’s opinion reversing the

district court’s order and granting Respondents’

Motion to Dismiss (Pet.App. 1a-15a) is at 153 F.4th

695.

The Eighth Circuit’s order denying Petitioners’

Petition for Rehearing En Banc (Pet.App. 16a) is at

2025 WL 3060300.

JURISDICTION

The Eighth Circuit issued its opinion in this

matter on September 3, 2025, and denied Petitioners’

Petition for Rehearing En Banc on November 3, 2025.

This petition is filed under Supreme Court Rule 10,

and the Court’s jurisdiction is invoked under 28

U.S.C. §§ 1254(1) and 2101(c).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Minn. Stat. § 181.531; the First Amendment;

and 29 U.S.C. § 158 are reprinted in the appendix.

Pet.App. 59a-61a; 62a; 63a-74a.

INTRODUCTORY STATEMENT

This case presents an ideal vehicle for the

Court to address a conflict in the Circuits as well as

the meaning and application of the Court’s holding in

Whole Woman’s Health v. Jackson, 595 U.S. 30 (2021).

By allowing the state’s enforcement officials to

disclaim their statutory responsibility to enforce the

state’s law restricting exercise of the First

Amendment, the Eighth Circuit’s decision directly

conflicts with Whole Woman’s Health, as well as

precedent from both the Sixth and Ninth Circuits,

which hold when state officials have a statutory duty

to enforce a law, that duty renders such officials

proper parties under Ex parte Young, regardless of

whether

those

officials

planned

imminent

enforcement. See Ass’n des Eleveurs de Canards et

d’Oies du Quebec v. Harris, 729 F.3d 937, 943 (9th Cir.

2013) (attorney general’s duty to prosecute violations

of challenged statute foreclosed Eleventh Amendment

immunity); Universal Life Church Monastery

Storehouse v. Nabors, 35 F.4th 1021, 1040 (6th Cir.

2022) (district attorneys general not entitled to

immunity where they had authority and duty to

enforce challenged statute).

The Eighth Circuit decision is also inherently

in conflict with precedent from the Fifth, Tenth and

Eleventh Circuits. See Okpalobi v. Foster, 244 F.3d

405, 417 (5th Cir. 2001) (“[A]ny probe into the

existence of a Young exception should gauge (1) the

ability of the official to enforce the statute at issue

under his statutory or constitutional powers, and (2)

the demonstrated willingness of the official to enforce

the statute.”); Kitchen v. Herbert, 755 F.3d 1193, 1201

(10th Cir. 2014) (“An officer need not have a special

connection to the allegedly unconstitutional statute;

rather, he need only have a particular duty to enforce

the statute in question and a demonstrated

willingness to exercise that duty.”) (quotation

omitted); P.C. v. Pryor, 180 F.3d 1326, 1339-40 (11th

Cir. 1999) (applying Ex parte Young where defendants

made clear they “do intend to prosecute violators”,

though they had not specifically threatened

plaintiffs).

Finally, the Eighth Circuit decision conflicts

with other decisions in the Sixth and Ninth Circuits.

See Doe v. DeWine, 910 F.3d 842, 848–49 (6th Cir.

2018) (statewide official proper party under Ex Parte

Young when official will take legal or administrative

actions against the plaintiff’s interests); Los Angeles

Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir.

1992) (governor is a proper Ex parte Young defendant

where his “duty to appoint judges to any newly

created judicial positions” constituted connection to a

challenged statute)

On May 17, 2023, Minn. Stat. § 181.531 (“the

Act”) became law, unconstitutionally infringing on the

rights of Minnesota employers by prohibiting them

from holding mandatory meetings with employees to

discuss “religious or political matters”. The Act was

passed in plain defiance of the First Amendment as

well as 29 U.S.C. § 158(c) (“Section 8(c)” of the

National Labor Relations Act (NLRA)). Indeed, this

Court has repeatedly emphasized “an employer’s free

speech right to communicate his views to his

employees is firmly established and cannot be

infringed….” NLRB v. Gissel Packing Co., 395 U.S.

575, 617 (1969) (emphasis added); see also Nat’l Rifle

Ass’n of Am. v. Vullo, 602 U.S. 175, 191 (2024)

(“Ultimately, Bantam Books 1 stands for the principle

that a government official cannot do indirectly what

she is barred from doing directly. A government

official cannot coerce a private party to punish or

suppress disfavored speech on her behalf.”).

To vindicate their Constitutional rights,

Petitioners filed suit in this matter on February 20,

2024 against Respondents Nicole Blissenbach, the

Commissioner of Minnesota’s Department of Labor

and Industry (“DOLI”), and Keith Ellison, Attorney

General of Minnesota, alleging that the Act violated

Petitioners’ First Amendment rights and is

preempted by the NLRA. Shortly after the initial

Complaint was filed in the United States District

Court for the District of Minnesota, Minnesota

Governor, Tim Walz stated, “Minnesota was going to

ban that practice, of having those captive anti-union

meetings. You go to jail now if you do that in

Minnesota because you can’t intimidate people.”

(emphasis added). After that speech, Governor Walz

later signed into law an amendment to the Act,

requiring the Minnesota Commissioner of Labor and

Industry to develop a poster that employers are

required to post, notifying employees of their rights

under the Act.

1 Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).

Petitioners amended the initial Complaint to

add Governor Walz as a party because he expressed a

strong interest and imminent threat in enforcing the

Act, and added a reference to the Act as amended.

After being added as a Defendant, Governor Walz

doubled-down during the height of his campaign for

the vice presidency of the United States, stating: “We

banned those damn captive-audience meetings for

good in Minnesota. Last time I said that at a union

meeting, they sued me over it. It was the best thing to

get sued over I ever said. We’re going to continue to

ban those meetings.”

Respondents moved to dismiss the Complaint

claiming they were afforded sovereign immunity

pursuant to the Eleventh Amendment. The district

court ruled from the bench and properly denied the

motion as to all Respondents pursuant to Ex parte

Young’s exception to sovereign immunity. Indeed, the

district court (applying this Court’s holding in Whole

Woman’s Health) recognized that, while the Act’s

primary enforcement mechanism is through private

action, there exist “state executive officials who retain

the authority to enforce the law in some way, and we

have steps taken affirmatively toward executing that

authority…”.

On interlocutory appeal, the Eighth Circuit, in

a split-ruling, erred in reversing the district court’s

holding. The split panel held Governor Walz’s ability

to appoint and remove Commissioner Blissenbach did

not give him a connection to the Act’s enforcement

under Ex parte Young. Further, the split panel held

Commissioner Blissenbach’s duties under the Act are

“ministerial” because, in part, the Commissioner’s

duty to develop an education poster, “does not

facilitate any information enabling enforcement to

flow back to the state.” Lastly, the split panel held

Attorney General Ellison’s declaration disclaiming

any intent to enforce the Act overrode his statutory

obligations to the contrary, such that he is not

threatening to commence proceedings against

Plaintiffs. Critically, in his dissent to the panel

holding, Judge Loken found that the record fully

supported the district court’s analysis and

conclusions:

the Governor’s authority to

appoint and remove the Commissioner,

and his speeches saying if you violate the

law you will go to jail, “evince a

commitment to enforcing the law and a

threat of enforcing the law that is unique

among all the cases I could find,” a

“robust tie to threatening to enforce the

law”;

the

Commissioner

has

adequate connection to enforcing or

threatening to enforce the Act because

“the statute is replete with examples of

things the commissioner does in support

of enforcement of this law”; and

the Attorney General “actually

has enforcement ability”; he “has taken

the least action but has the strongest

connection with the enforcement of this

statute.”

In this First Amendment case, the

[district] court further observed, “there is

something unique about public threats to

enforce this law” that creates extra

concern for chilling protected speech.

153 F.4th 695, 703-04 (8th Cir. 2025).

After the Eighth Circuit issued its opinion,

Attorney General Ellison issued a press release

highlighting the State actors’ desire to suppress

employer free speech and undermine employer rights

under the NLRA, stating: “Employees should not be

forced to attend meetings that push their boss’

political or religious views.” Thereafter, on November

3, 2025, the Eighth Circuit denied Petitioner’s request

for rehearing en banc, but Judges Shepherd and Grasz

joined Judge Loken in voting for rehearing en banc.

No. 24-3116, 2025 WL 3060300, at *1 (8th Cir. Nov. 3,

2025).

The Eighth Circuit’s split ruling contravenes

this Court’s holding in Whole Woman’s Health,

conflicts with decisions of other Courts of Appeals,

and conflicts with prior Eighth Circuit rulings. As

this Court has repeatedly emphasized, States may not

nullify Constitutional rights through “evasive

schemes” designed to run-around federal judicial

review. Cooper v. Aaron, 358 U.S. 1, 17–18 (1958).

Yet Minnesota attempts to do so here.

The Eighth Circuit’s split holding paves the

way for States to enact unconstitutional statutes

chilling First Amendment rights, while avoiding

federal judicial review of these statutes by disclaiming

an enforcement interest even though they possess the

statutory authority and obligation to do so. Under the

Eighth Circuit’s split holding, no person would be able

to challenge a blatantly unconstitutional statute prior

to enforcement – allowing for the unconstitutional

chilling of First Amendment Rights.

The paramount importance of the question

presented, this Court’s earlier rulings, the conflict

between the Circuits, and the Eighth Circuit’s

departure from its prior holdings warrant this Court’s

review.

Minn.

Stat.

Respondents’

Authority

181.531

and

Enforcement

Minn. Stat. § 181.531 prohibits Minnesota

employers from discharging, disciplining or otherwise

penalizing or threatening to discharge, discipline, or

otherwise penalize an employee “because the

employee declines to attend or participate in an

employer-sponsored meeting or declines to receive or

listen to communications from the employer… if the

meeting or communication is to communicate the

opinion of the employer about religious or political

matters.”

The Act defines political matters as “matters

relating to elections for political office, political

parties, proposals to change legislation, proposals to

change regulations, proposals to change public policy,

and the decision to join or support any political party

or political, civic, community, fraternal, or labor

organization.” It defines religious matters as “matters

relating to religious belief, affiliation, and practice

and the decision to join or support any religious

organization or association.”

Further, the Act requires employers to post a

notice of employees’ rights (i.e., notifying employees of

the prohibited conduct by the employer) in places

where employee notices are customarily posted.

Indeed, the Act commands Commissioner Blissenbach

to create the notice poster for employers to use. Not

only has she done so, but she also notified employers

they are required to post the notice. 2 The notice

poster notifies employees that they may bring a civil

action to enforce the law and seek damages and lists

the DOLI’s phone number and e-mail address.

Employers face significant penalties for

violating the Act by taking action against employees

who refuse to attend employer-sponsored meetings or

decline to listen to an employer’s opinion on “political”

or “religious” matters. Discharged or disciplined

employees can sue employers for damages, including

back pay, any other appropriate relief to make the

employee whole, and attorneys’ fees and costs. Minn.

Stat. § 181.531, Subd. 2. Additionally, all three

Respondents maintain authority to enforce the Act,

despite Minnesota’s arguments to the contrary.

First, with respect to Attorney General Ellison,

Respondents do not dispute he has the authority to,

and must, enforce the Act. Minn. Stat. § 8.31, subd.

1, commands that the attorney general “shall

investigate violations of the law of this state

respecting unfair, discriminatory, and other unlawful

practices in business, commerce, or trade…”.

(emphasis added). By virtue of his powers under §

8.31, Attorney General Ellison is authorized – and

required – to enforce the Act. Minn. Stat. § 181.1721.

The Act commands Commissioner Blissenbach

to create a notice poster that employers are required

2 https://www.dli.mn.gov/posters.

to post.

Further, Minn. Stat. § 175.20 gives

Commissioner Blissenbach authority to “enter

without unreasonable delay and inspect places of

employment, during normal working hours, and

investigate facts, conditions, practices or matters as

the commissioner deems appropriate to enforce the

laws within the Commissioner’s jurisdiction and to

carry out the purposes of this chapter and chapter

177, 181, 181A, or 184…”. Commissioner Blissenbach

may also issue subpoenas, collect evidence, interview

witnesses, take testimony, and compel the attendance

of witnesses to investigate violations of the Act.

Moreover, Minn. Stat. § 181.1721 specifically

reiterates the Minnesota Department of Labor and

Industry’s authority to enforce the Act: “In addition to

the enforcement of this chapter by the department, the

attorney general may enforce this chapter under

section 8.31.” (emphasis added).

Commissioner

Blissenbach may then refer violations to the Attorney

General for enforcement or, as she has stated she will,

refer individuals to private counsel.

Finally, with respect to Governor Walz, the

Governor has authority to appoint and remove

Commissioner Blissenbach at any time – including if

she refuses to enforce the Act. Minn. Stat. § 4.04.

subdiv. 1. Beyond such power, Governor Walz may, if

in his opinion the public interest requires as such,

“employ counsel to act in any action or proceeding if

the attorney general is in any way interested

adversely to the state.” Minn. Stat. § 8.06.

In short, the Act blatantly restricts the freespeech rights of private employers as a content- and

viewpoint-based restriction.

It makes captiveaudience meetings unlawful. In that vein, the Act is

preempted by the NLRA, which undoubtedly protects

or prohibits captive-audience meetings relating to

labor organizations. See San Diego Building Trades

Council v. Garmon, 359 U.S. 236 (1959) (holding that

a state statute that regulates activity which is even

arguably protected or prohibited by the NLRA is

preempted); Chamber of Commerce v. Brown, 554 U.S.

60, 67-68 (2008) (NLRA Section 8(c) “implements the

First Amendment” and “expressly precludes

regulation of speech about unionization so long as the

communications do not contain a ‘threat of reprisal or

force or promise of benefit’”) (emphasis added).

To avoid federal judicial scrutiny, the

Minnesota legislature has done as Texas did – it

essentially delegated enforcement authority to

private citizens in an attempt to insulate Minnesota

from responsibility for implementing and enforcing

the Act. Employers across Minnesota can no longer

hold mandatory employee meetings for fear of costly

litigation. Indeed, despite wanting to do so, Petitioner

Laketown Electric Corporation ended its practice of

mandatory employee meetings as a result of the Act.

Minnesota accomplished its goal – effectively

ending employer free speech rights while also

maintaining the position that its hands are clean, and

that it takes no part in the Act’s enforcement. This it

simply cannot do – a Constitutional right that can be

abridged at will by any State simply passing

enforcement off to the populace at large is no

Constitutional right at all.

Proceedings in the District Court

In February 2024, Petitioners filed their initial

Complaint, seeking a declaration from the district

court that the Act violates the Constitution and is

preempted by the NLRA. Specifically, Petitioners

sought relief because the Act regulates speech and

therefore violates Petitioners’ First Amendment

rights. First Nat’l Bank of Boston v. Bellotti, 435 U.S.

765, 776 (1978). Further, Petitioners sought relief

because the Act attempts to regulate employer speech

in a manner that Congress has prohibited under the

NLRA. See, e.g., 29 U.S.C. § 158(c) (“Section 8(c)” of

the NLRA). Since 1947, this Court and the Courts of

Appeals have unequivocally spoken: “[A]n employer’s

free speech right to communicate his views to his

employees is firmly established and cannot be

infringed . . .” NLRB v. Gissel Packing Co., Inc., 395

U.S. 575, 617 (1969) (emphasis added); Chamber of

Commerce v. Brown, 554 U.S. 60, 67-68 (2008); see

also NLRB v. Prescott Indus. Products Co., 500 F.2d

6, 10 n.13 (8th Cir. 1974) (“The legislative history of §

8(c) . . . makes it clear that its purpose was to effectuate

employers’ First Amendment rights as a response, in

part, to the restrictions placed by the Board on captive

audience speeches” (emphasis added)).

After the initial Complaint was filed on April

23, 2024, Governor Walz gave a speech at a conference

hosted by North America’s Building Trades Unions, in

which Governor Walz stated (referring to Act),

“Minnesota was going to ban that practice, of having

those captive anti-union meetings. You go to jail now

if you do that in Minnesota because you can’t

intimidate people.” (emphasis added). After that

speech, Governor Walz later signed into law an

amendment to the Act, requiring Commissioner

Blissenbach to develop the notice Minnesota

employers are required to post, notifying employees of

their rights under the Act. See Minn. Stat. § 181.531,

subd. 3(a). Thereafter, on August 13, 2024, Governor

Walz gave another speech at a convention held by the

American Federation of State, County, and Municipal

Employees. During his speech, Governor Walz stated:

“We banned those damn captive-audience meetings

for good in Minnesota. Last time I said that at a union

meeting, they sued me over it. It was the best thing to

get sued over I ever said. We’re going to continue to

ban those meetings.” The Complaint was amended

twice considering these events, adding Governor Walz

as a Respondent.

Respondents moved to dismiss the Second

Amended and Supplemental Complaint, arguing that

they were entitled to Eleventh Amendment sovereign

immunity. On September 16, 2024, the district court

heard argument on a renewed motion to dismiss. At

the conclusion of the hearing, the district court ruled

from the bench and denied Respondents’ motion to

dismiss as to all three Respondents.

In making its bench ruling, the district court

reviewed applicable case law and emphasized the

importance of Eleventh Amendment immunity while

noting there is an exception to that immunity under

Ex parte Young. The district court acknowledged that

it was required to determine whether a connection

between the defendant and the enforcement of the law

existed but noted “case law teaches that it need not be

an exclusive enforcement responsibility. It need not be

the only official with a connection to the enforcement

of the law. It may not be the primary enforcement

ability.” Pet.App. 47a.

The district court also recognized case law is

evolving as courts are presented with challenges to

laws that are designed for enforcement through a

private right of action, particularly in light of this

Court’s decision in Whole Woman’s Health. In fact,

the district court acknowledged that in Whole

Woman’s Health, Mr. Chief Justice Roberts stated

eight justices agreed the Ex parte Young exception

applied in that case because there still existed state

executive officials who retained authority to enforce

the statute at issue, which was enforced primarily

through a private cause of action. Pet.App. 51a. The

district court further relied upon Vullo, 602 U.S. at

191, as being instructive on the Ex parte Young

analysis, stating: “Ultimately, [the Supreme Court’s

decision in] Bantam Books stands for the principle

that a government official cannot do indirectly what

she is barred from doing directly. A government

official cannot coerce a private party to punish or

suppress disfavored speech on her behalf.” Pet.App.

53a.

The district court ruled Governor Walz was not

entitled to sovereign immunity, finding he has a

requisite connection with the Act’s enforcement

because he can appoint and remove Commissioner

Blissenbach. Additionally, the district court found the

facts revealed Governor Walz is actually threatening

to enforce the Act. Pet.App. 47a-49a. Rather than

simply celebrate the passage of the Act, the district

court found Governor Walz went a step further by his

combination of speeches where he stated that if

employers violate this law, they will go to jail and then

later proudly mentioning this case. The district court

found Governor Walz’s comments at the two meetings

evinced a robust commitment to enforcing the law and

a threat of enforcing the law that is “unique among all

the cases that [it] could find.” Governor Walz has

never taken back or disclaimed his threats of

enforcement.

Next, the district court found Commissioner

Blissenbach was not entitled to sovereign immunity.

As the district court found, the Act is replete with

examples of things the Commissioner does in support

of the enforcement of this law, and “there’s no

suggestion [in case law] that it has to be simply a pure

traditional prosecutorial authority to count as

sufficient tie to the enforcement of the law.” Pet.App.

50a. The district court further noted that, for

purposes of the Ex parte Young exception,

enforcement cannot have as narrow a meaning as the

Respondents suggest, particularly where enforcement

is designed through a private cause of action.

Pet.App. 52a. Moreover, the district court found the

fact that Commissioner Blissenbach prepared and

posted a notice informing employees of their rights

under the Act on the DOLI website, and also

acknowledged she would refer employees to private

attorneys to enforce the Act, established enforcement,

citing Doe vs. DeWine, 910 F.3d 842 (6th Cir. 2018),

Jones v. Jegley, 947 F.3d 1100 (8th Cir. 2020), as well

as Whole Woman’s Health.

Lastly, the district court found Attorney

General Ellison was not entitled to sovereign

immunity. Of course, Respondents did and do admit

that Attorney General Ellison has authority to enforce

the Act. The district court found because Attorney

General Ellison undisputedly retains authority to

enforce the Act, and because his co-defendants are

enforcing and threatening to vigorously enforce the

Act, Attorney General Ellison fell within the Ex parte

Young exception pursuant to Whole Woman’s Health.

Pet.App. 50a.

Proceedings in the Court of Appeals

After the district court denied Respondents’

motion to dismiss, they filed an interlocutory appeal

to the Eighth Circuit Court of Appeals, reasserting

they were entitled to sovereign immunity under the

Eleventh Amendment. Pending the outcome of the

appeal, the district court proceedings were stayed.

On September 3, 2025, a split panel of the

Eighth Circuit issued a decision reversing the district

court. See Minnesota Chapter of Associated Builders

& Contractors v. Ellison, 153 F.4th 695 (8th Cir. Sept.

3, 2025). The split panel held Governor Walz’s ability

to appoint and remove Commissioner Blissenbach did

not give him a connection to the Act’s enforcement

under Ex parte Young. Id. at 698-699. Further, the

split panel held that Commissioner Blissenbach’s

duties under the Act are “ministerial” because, in

part, the Commissioner’s duty to develop an education

poster, “does not facilitate any information enabling

enforcement to flow back to the state.” Id. at 700.

Lastly, the split panel held Attorney General Ellison’s

declaration disclaiming any intent to enforce the Act

overrode his statutory obligations to the contrary,

such that he is not threatening to commence

proceedings against Plaintiffs. Id. at 701.

Critically, Judge Loken dissented to the panel

holding, stating that “the limited record on

defendants’ motion to dismiss fully supports the

district court’s analysis and conclusions.” Id. at 702703. Judge Loken noted that in rendering its decision,

the district court correctly stated the standard of

applying the Ex parte Young exception before

concluding that each defendant has an adequate

connection to enforcing or threatening to enforce the

Act and properly rejected the broad conflicting

contentions of the Respondents.

Id. at 703.

Additionally, Judge Loken noted the district court’s

observation that in this First Amendment case, “there

is something unique about public threats to enforce

this law” that creates extra concern for chilling

protected speech. Id. at 704.

After the Eighth Circuit panel issued its

opinion, Attorney General Keith Ellison issued a

press release, providing among other things:

“Today’s ruling is a win for working people

across Minnesota,” said Attorney General

Ellison. “Employees should not be forced to

attend meetings that push their boss’

political or religious views. Similarly, if

workers are trying to form a union,

management should not be able to hold

mandatory meetings to spread anti-union

propaganda and retaliate against workers

who refuse to attend. The whole purpose of

unions is to create a more level playing field

at the workplace by empowering workers to

act collectively. It would be fundamentally

unjust and unfair to allow management to

weaponize the disproportionate power they

have in the workplace to hold mandatory,

anti-union meetings in an attempt to stop a

union from forming in the first place . . . “.

In Minnesota, if you face retaliation in the

workplace for refusing to attend a meeting

intended to push your employer’s political

agenda or thwart efforts to form a union,

you can actually file a lawsuit and hold your

employer accountable for violating your

rights,” added Ellison. “I am pleased to have

won a ruling protecting that important

right, and I will continue to defend

Minnesota laws and the dignity of working

people everywhere.” 3

Petitioners filed a timely Petition for Rehearing

En Banc on September 17, 2025, and Respondents

filed a responsive brief on October 3, 2025. On

November 3, 2025, the Eighth Circuit denied

Petitioners’ Petitioner for Rehearing – though it noted

that Judges Loken, Shepherd, and Grasz would have

granted it.

II.

REASONS FOR GRANTING THE WRIT

This petition provides the optimal vehicle for

addressing conflicts within the Circuits as to whether

an imminent threat of enforcement by a State actor is

necessary to fall within the exceptions of Ex parte

Young, as well as solidify the Court’s holding in Whole

Woman’s Health that a State cannot insulate

blatantly unconstitutional laws from challenge by

simply passing primary enforcement authority to the

populace at large.

https://www.ag.state.mn.us/Office/Communications/2025/09/03_

CaptiveAudience.asp (last visited December 10, 2025) (emphasis

added).

The

Eighth

Circuit’s

Holding

Conflicts with this Court’s Ruling in

Whole Woman’s Health, and Rulings

in Numerous Other Circuits as to

Attorney General Ellison.

The Court should grant the writ because the

Eighth Circuit opinion conflicts with this Court’s

Opinion in Whole Woman’s Health and opinions in

numerous other circuits with respect to Attorney

General Ellison, who is statutorily obligated to

enforce the Act. Whole Woman’s Health counsels that

a state official who “may or must take enforcement

actions” is a proper party pursuant to Ex parte Young.

Whole Woman’s Health, 595 U.S. 30 at 45. The Chief

Justice’s

concurrence

makes

that

holding’s

applicability to this situation abundantly clear:

These

provisions,

among

others,

effectively chill the provision of abortions

in Texas. Texas says that the law also

blocks any pre-enforcement judicial

review in federal court. On that latter

contention, Texas is wrong. As eight

Members of the Court agree, see ante, at

––––, petitioners may bring a preenforcement suit challenging the Texas

law in federal court under Ex parte

Young, 209 U.S. 123, 28 S.Ct. 441, 52

L.Ed. 714 (1908), because there exist

state executive officials who retain

authority to enforce it. See, e.g., Tex.

Occ. Code Ann. § 164.055(a) (West 2021).

Given the ongoing chilling effect of the

state law, the district court should

resolve this litigation and

appropriate relief without delay.

enter

Whole Woman’s Health, 595 U.S. at 59-60

(emphasis added) (Roberts, C.J., concurring). And

while Whole Woman’s Health did not involve the First

Amendment, “[t]he nature of the federal right

infringed does not matter; it is the role of the Supreme

Court in our constitutional system that is at stake.”

Id. at 62 (Roberts, C.J., concurring in part).

The Eighth Circuit erred in its failure to apply

Whole Woman’s Health with respect to Attorney

General Ellison, finding his declaration to having “no

present intention to commence” enforcement divests

the district court of subject matter jurisdiction.

Ellison, 153 F.4th at 702. But the Attorney General

has no choice in the matter of enforcement –

Minnesota law requires him to do so. Minn. Stat. §

8.31, subd. 1. And because the Attorney General is a

State official who “must take enforcement actions”

against Petitioners, he is a proper defendant under Ex

parte Young. Whole Woman’s Health, 595 U.S. 30 at

45.

The Eighth Circuit’s holding hangs on the

Attorney General’s sworn declaration that he

possesses no current intent to enforce the Act. It cites

Whole Woman’s Health, stating: “When a private

citizen defendant ‘supplied sworn declarations’

attesting ‘he possess[ed] no intention’ to enforce the

statute, a unanimous Supreme Court held that

plaintiffs ‘[could not] establish “personal injury fairly

traceable to [defendant’s] allegedly unlawful conduct”‘

and remanded for the claims against this defendant to

be dismissed for lack of standing.” Ellison, 153 F.4th

at 701-702.

Of course, the private individual at issue in

Whole Woman’s Health was not a State actor, the

Court was not analyzing claims against him under Ex

parte Young, and was not analyzing the issue of

subject matter jurisdiction with respect to the private

individual. The Eighth Circuit does not address these

obvious and critical distinctions, instead simply

declaring that “[t]his case is similar,” and holding that

the Attorney General’s declaration stating he

possesses no present intent to enforce the Act is

dispositive.

And moreover, the Eighth Circuit’s holding

contravenes holdings of other Circuits. 4 Both the

Sixth and Ninth Circuits hold when state officials

have a statutory duty to enforce the law, that duty

renders such officials proper parties under Ex parte

Young. See Ass’n des Eleveurs de Canards et d’Oies

du Quebec v. Harris, 729 F.3d 937, 943 (9th Cir. 2013)

(attorney general’s duty to prosecute violations of

challenged statute foreclosed Eleventh Amendment

immunity); Universal Life Church Monastery

Storehouse v. Nabors, 35 F.4th 1021, 1040 (6th Cir.

2022) (district attorneys general not entitled to

immunity where they had authority and duty to

enforce challenged statute).

4 The Eighth Circuit’s decision infringing on First Amendment

rights has, like a cancer, begun metastasizing and is being used

now to restrict constitutional rights in other jurisdictions like

Illinois. Illinois Policy Institute v. Flanagan, No. 24-cv-06976,

2025 WL 0900516, at *7 (N.D. Ill. Sept. 30, 2025).

Similarly, the Eighth Circuit’s decision is

inherently in conflict with those of the Fifth and Ninth

Circuits, which hold state officials cannot do an endrun around live controversies by halting their conduct

in the face of litigation and claiming immunity. In

K.P. v. LeBlanc, 729 F.3d 427 (5th Cir. 2013), state

defendants argued the “ongoing” violation of the

Constitution ceased mid-litigation, re-instituting

their sovereign immunity.

The Fifth Circuit

disagreed: “Their theory, if accepted, would work an

end-run around the voluntary-cessation exception to

mootness where a state actor is involved.” Id. at 439.

The Ninth Circuit found the same in Riley’s Am.

Heritage Farms v. Elsasser, No. 23-55516, 2024 WL

1756101 (9th Cir. Apr. 24, 2024). There, the Court

determined a state official’s voluntary cessation of

unlawful conduct does not moot the “ongoing” harm:

“We…decline to let state actors end-run live disputes

by voluntarily stopping conduct in the fact of litigation

and then claiming immunity.” Id.at *2.

Nor could Attorney General Ellison’s disavowal

here cure the chill to Petitioners’ protected speech,

even if he were not obligated to enforce the Act. 5 If

courts deferred readily to State officers’ pinkypromises that they will not exercise their undisputed

authority to prosecute protected speech, “First

Amendment rights would exist only at the sufferance

of the State,” and “constitutionally protected speech

5 Indeed, Attorney General Ellison’s press release highlights his

underlying intent in filing a disavowal was to “defend” the Act

and allow it to continue to impermissibly regulate activity under

the NLRA as well as chill Petitioner’s free speech rights under

the First Amendment.

[would] be chilled as a result.” N.C. Right to Life, Inc.

v. Bartlett, 168 F.3d 705, 711 (4th Cir. 1999).

Ex parte Young does not turn on whether a

state officer is likely to commence an action to enforce

a state law. Rather, Ex parte Young turns on whether

the state officer has the legal capacity to enforce the

state law. See Whole Woman’s Health, 595 U.S. at 4748 (“[T]his is enough at the motion to dismiss stage to

suggest the petitioner will be the target of an

enforcement action and thus allow this suit to

proceed.”). Of course, Ex parte Young applies when an

officer is “about to commence proceedings,” but the

Court has never suggested that the doctrine applies

only then. Rather, the core holding of Ex parte Young

is that a state officer is properly subject to suit for

prospective relief in federal court, notwithstanding

sovereign immunity, when state law vests the officer

with the capacity to enforce state law in violation of a

plaintiff’s federal constitutional rights. See, e.g., Ex

parte Young, 209 U.S. at 161 (“His power by virtue of

his office sufficiently connected him with the duty of

enforcement to make him a proper party to a suit of

the nature of the one now before the United States

circuit court.”).

The Eleventh Circuit specifically has

recognized that such a requirement – of truly

imminent and impending prosecution – “would

essentially render Ex parte Young a nullity”. Summit

Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1338 (11th

Cir. 1999). As that court explained:

We are unable to understand how, as a

practical matter, a potential plaintiff will

ever be able to predict when prosecution

is indeed “imminent.” Certainly, a

prosecutor has no obligation to inform a

target that she is planning to bring

criminal charges, or that prosecution

is imminent…. In short, if a plaintiff were

barred from airing his grievance in

federal court while an investigation was

pending before a grand jury or prosecutor

because he did not know and could not

prove that his prosecution was imminent,

and if a plaintiff were similarly barred

while the prosecution was pending in

state court—as he plainly would be

under Younger v. Harris—then the

avenue for seeking prospective relief in a

federal forum would be slender indeed.

Id. at 1339 (internal citations and quotations

omitted).

Whole Woman’s Health, along with authority

from the Sixth and Ninth Circuits, make clear that,

where a State official retains authority – indeed, an

obligation – to enforce an unconstitutional statute

enacted with intent to avoid federal judicial review,

the question is simply whether the official “may or

must” take enforcement action. This is especially true

here where, despite Attorney General Ellison’s pinkypromise to not enforce the Act against Petitioners, his

statutory mandate is to the contrary. King v.

Youngkin, 122 F.4th 539, 544–45 (4th Cir. 2024)

("[T]his Court has repeatedly rejected the claim that

the Ex parte Young doctrine contains its own

imminency requirement. Rather, [t]he requirement

that the violation of federal law be ongoing is satisfied

when a state officer's enforcement of an allegedly

unconstitutional state law is threatened, even if the

threat is not yet imminent.” (internal quotations

omitted) (emphasis in original)).

And this must be the end-result – a contrary

holding will essentially allow States to nullify

Constitutional rights. “If the legislatures of the

several states may, at will, annul the judgments of the

courts of the United States, and destroy the rights

acquired under those judgments, the constitution

itself becomes a solemn mockery.” United States v.

Peters, 5 Cranch 115, 136 (1809). Minnesota’s actions

here, closely following Texas’ enactment of S.B. 8,

represent a disturbing pattern in which legislatures

believe they can run-around federal judicial review to

nullify, and chill, the federal rights of its citizenry.

This case provides the Court with the ideal

vehicle to end the practice now and make clear that

such gamesmanship of the Constitution’s inalienable

rights is not permissible – lest the pattern become a

widespread practice. 6

6 Indeed, 12 States other than Minnesota have now passed some

version of a captive-audience ban statute. See Alaska Stat. §

23.10.450 (2024); Cal. Lab. Code § 1137 (2024); Conn. Gen. Stat.

§ 31-51q (2022); Haw. Rev. Stat. § 377-6(14) (2024); 820 ILCS

57/15 (2024); Me. Stat. tit. 26 § 600-B (2023); N.J. Stat. § 34:1910 et seq. (2025); N.Y. Lab. Law § 201-D(2)(e) (2023); ORS §

659.785 (2009); R.I. Gen. Laws § 28-7-50 (2025); Vt. Stat. Ann.

tit. 21, § 495o (2023); Wash. Rev. Code § 49.44.250 (2024).

California’s captive-audience ban was recently temporarily

enjoined. California Chamber of Com. v. Bonta, No. 2:24-CV03798-DJC, ___ F.Supp.3d ___, 2025 WL 2779355, at *14 (E.D.

Cal. Sept. 30, 2025) (finding California’s captive audience law

unconstitutional under the First Amendment). Other than

California’s statute, each other State’s version permits

enforcement via a private cause of action.

The Eighth Circuit’s Ruling Also

Conflicts With this Court’s Ruling in

Whole

Woman’s

Health,

the

Decisions of Other Circuits, and its

Own

Prior

Holdings

Commissioner

Blissenbach

and

Governor Walz.

The Eighth Circuit further erred in finding that

Commissioner Blissenbach and Governor Walz do not

have a connection with enforcement of the Act for

purposes of Ex parte Young and Whole Woman’s

Health. Indeed, the Eighth Circuit’s holding conflicts

with the decisions of other Circuits and departs from

its own precedent as to what State conduct constitutes

“enforcement”. This case provides the Court with an

ideal opportunity to address that open question now

and resolve the Circuit split.

Commissioner

Blissenbach

Has a Direct Connection to

Enforcement of the Act

Commissioner Blissenbach may enforce, and is

enforcing, the Act for purposes of Ex parte Young and

Whole Woman’s Health. Nevertheless, the Eighth

Circuit held the Act requiring her to develop a notice

poster that employers must post is not sufficient

connection to the Act’s enforcement because it “does

not facilitate any information enabling enforcement to

flow back to the State.” Ellison, 153 F.4th at 700.

With respect to Commissioner Blissenbach’s

undisputed authority to “enter… and inspect places of

employment” and to “investigate facts, conditions,

practices or matters,” the Eighth Circuit further held

that “[i]nvestigating an employer may increase an

employer’s compliance with the Act, but it ‘does not

rise to the level of compulsion or constraint needed’ for

enforcement.” Id. at 701.

The Eighth Circuit’s holding contravenes its

prior holdings in Worth v. Jacobson, 108 F.4th 677,

684, n.3 (8th Cir. 2024) and Jones v. Jegley, 947 F.3d

1100, 1103 n.2 (8th Cir. 2020).

In Jacobson, the Eighth Circuit held making

application forms available on the internet

constituted sufficient connection with enforcement of

a law. Jacobson, 108 F.4th at 684, n.3. But in this

case, the split panel found that “developing an

educational

poster…does

not

facilitate

any

information enabling enforcement to flow back to the

State. In other words, the State’s enforcement

machinery does not benefit from the development of

the poster so it lacks ‘some connection’ with

enforcement.” Ellison, 153 F.4th at 700.

Contrary to the Eighth Circuit’s holding, the

Commissioner’s poster does enable information

enforcement to flow back to the State – the poster

itself contains DOLI’s phone number and e-mail

address for individuals to contact DOLI and report

violations. Once contacted by an individual, the

Commissioner may (and she has stated she will) refer

individuals to private attorneys to enforce the Act.

The State’s interest in enforcing the Act to

unconstitutionally stifle employer speech is directly

benefited by the Commissioner’s poster.

In Jegley, the Eighth Circuit held that the

power to investigate, as well as to levy fines and make

referrals to law enforcement, was sufficient

connection to enforcement of the law. Jegley, 947 F.3d

at 1103 n.2. Importantly, in Jegley, the Eighth Circuit

recognized that it has repeatedly rejected the

argument that a plaintiff must risk prosecution before

challenging a statute under the First Amendment. Id.

Not only does the Eighth Circuit’s holding

contravene its own precedent, but it is also in direct

conflict with other Circuits. In Doe v. DeWine, 910

F.3d 842, 848–49 (6th Cir. 2018), the Sixth Circuit

made clear that “[L]ack of direct criminal enforcement

authority does not foreclose [plaintiff’s] reliance on Ex

parte Young… enjoining a statewide official under

Young is appropriate when there is a realistic

possibility the official will take legal or administrative

actions against the plaintiff’s interests.” (emphasis

added) (cleaned up).

In other words, “enforcement” for Ex parte

Young purposes need not mean direct enforcement via

traditional prosecutorial authority.

It can take

differing forms – and in this instance, it takes forms

that the Eighth Circuit, and other Circuits, have said

is sufficient to constitute enforcement. In fact, the

Eighth Circuit held the Commissioner’s ability to

investigate employers “may increase an employer’s

compliance with the Act”. Ellison, 153 F.4th at 701.

It is simply an obfuscation of reality to find that an

action taken by the Commissioner which would

increase compliance with an unconstitutional statute

is somehow not enforcing the statute itself.

The Eighth Circuit’s holding represents a split

between Circuits and within its own prior rulings, and

it warrants this Court’s review.

Governor Walz Has a Direct

Connection with Enforcement

of the Act

The Eighth Circuit’s decision is also in conflict

with Whole Woman’s Health and other Circuits

because Governor Walz may take enforcement action.

Indeed, Governor Walz may, if in his opinion the

public interest requires as such, “employ counsel to

act in any action or proceeding if the attorney general

is in any way interested adversely to the state.” Minn.

Stat. § 8.06. Further, he has authority to appoint and

remove Commissioner Blissenbach at any time –

including if she refuses to enforce the Act. Minn. Stat.

§ 4.04. subdiv. 1. Notably, despite his public threats,

at no time has Governor Walz ever disclaimed an

interest in enforcing the Act.

Despite Governor Walz’s undisputed authority,

the Eighth Circuit held Governor Walz’s power to

remove Commissioner Blissenbach “does not have

sufficient connection with enforcement of the Act”

because it is an administrative or ministerial act.

Ellison, 153 F.4th at 698-99. It further held that while

employing counsel provides the requisite method of

enforcement, that the Governor might in the future

appoint outside counsel and the appointed counsel

might undertake enforcement action was a series of

hypotheticals that could not support an Ex parte

Young suit. Id. at 699.

Whole Woman’s Health, however, counsels that

a State official who “may or must take enforcement

actions” is a proper party pursuant to Ex parte Young.

Whole Woman’s Health, 595 U.S. 30 at 45. The Chief

Justice’s concurrence makes such finding clear:

As eight Members of the Court agree,

see ante, at ––––, petitioners may bring

a pre-enforcement suit challenging the

Texas law in federal court under Ex

parte Young, 209 U.S. 123, 28 S.Ct. 441,

52 L.Ed. 714 (1908), because there

exist state executive officials who

retain authority to enforce it.

The Eighth Circuit’s opinion also conflicts with

the Ninth Circuit, which has held a governor is a

proper Ex parte Young defendant where his “duty to

appoint judges to any newly created judicial positions”

constituted connection to a challenged statute. Los

Angeles Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th

Cir. 1992). Moreover, the Eighth Circuit, along with

the Fifth, Tenth, and Eleventh Circuits have

previously applied Ex parte Young where a state

official has made statements indicating that they are

willing to enforce a challenged statute. Summit Med.

Assocs., P.C. v. Pryor, 180 F.3d 1326, 1339-40 (11th

Cir. 1999) (applying Ex parte Young where defendants

made clear they “do intend to prosecute violators”,

though they had not specifically threatened

plaintiffs); 281 Care Comm. v. Arneson (Care

Committee II), 766 F.3d 774, 797 (8th Cir. 2014)

(recognizing that a defendant state official who has a

“demonstrated willingness” to enforce a statute is a

proper Ex parte Young defendant); Kitchen v. Herbert,

755 F.3d 1193, 1201 (10th Cir. 2014) (“An officer need

not have a special connection to the allegedly

unconstitutional statute; rather, he need only have a

particular duty to enforce the statute in question and

a demonstrated willingness to exercise that duty.”)

(quotation omitted); Okpalobi v. Foster, 244 F.3d 405,

417 (5th Cir. 2001) (“[A]ny probe into the existence of

a Young exception should gauge (1) the ability of the

official to enforce the statute at issue under his

statutory or constitutional powers, and (2) the

demonstrated willingness of the official to enforce the

statute.”). The Governor’s statements evince a clear

willingness to enforce the Act.

Finally, the split panel’s citation to Church v.

Missouri, 913 F.3d 736, 750 (8th Cir. 2019) and

Balogh v. Lombardi, 816 F.3d 536, 546 (8th Cir. 2016)

for the proposition that Governor Walz’s ability to

remove and appoint the DOLI Commissioner is an

administrative act not connected with enforcement of

the law is misplaced.

In Church, the Missouri governor could

appoint, but not remove, public defender commission

members. Church, 913 F.3d at 750; Mo. Stat. §

600.015 (“The commission shall be composed of seven

members, four of whom shall be lawyers, appointed by

the governor with the advice and consent of the

senate.”). The plaintiffs argued that the governor,

along with a public defender commission and its

members, violated the Sixth Amendment by failing to

adequately fund the public defender commission and

therefore failed to provide indigent defendants with

adequate representation. The plaintiffs argued that

the governor had sufficient connection with the

statute’s enforcement because of his ability to appoint

members of the commission. Church did not concern

the power of the governor to remove the commission’s

members, nor did it even concern a failure to enforce

a challenged statute.

Balogh involved the Missouri Department of

Corrections Director’s ability to select state’s

execution team members, who in turn, were permitted

under Missouri law to sue any person who knowingly

disclosed their identity. Balogh, 816 F.3d at 540. In

that case, the Eighth Circuit held because the

director’s ability to select the execution team had

“nothing to do with an execution team member’s

potential prosecution” of someone who disclosed their

identity, the director did not have a sufficient

connection to the statute’s enforcement. Id. at 546.

The district court recognized the facts here

stand in marked contrast to those set forth in Balogh

and Church. Whereas in Balogh, the director’s

selection of the execution team had “nothing to do

with an execution team member’s potential

prosecution,” Governor Walz’s ability to remove and

appoint a new DOLI Commissioner has everything to

do with the Commissioner’s potential enforcement of

the Act. Indeed, the removal power is what makes the

ultimate difference. Wielded by the Governor, it is a

power which may be used to ensure the Act’s

enforcement.

If the Commissioner directs a

subordinate to investigate wage theft violations in

Minnesota, the Commissioner is still connected with

enforcement even though she is not doing the

investigation herself. It is the direction itself enabling

enforcement which provides the requisite connection.

The same is true here. The Governor’s power to

remove and appoint a DOLI Commissioner who will

enforce the Act enables enforcement in the first

instance. The enforcement flows directly from the

Governor’s act himself – and unlike Commissioner

Blissenbach and Attorney General Ellison, the

Governor has not filed any declaration in this case

insisting he does not intend to enforce the law.

In sum, Governor Walz not only may enforce

the Act, but he has gone well beyond a “demonstrated

willingness” to enforce the Act. He has stated,

explicitly, that he will ensure it is enforced. He has

threatened violators with jail time (despite the Act not

allowing criminal prosecutions). And he has extolled

the virtues of being named in this lawsuit.

The Governor’s fervor for enforcing the Act,

combined with his power to remove any DOLI

Commissioner who does not abide his wishes as well

as his ability to appoint this own counsel constitutes

sufficient connection with the enforcement of the Act.

The Eighth Circuit’s holding was therefore in clear

error, and it warrants this Court’s review.

This Case Presents a Fundamental

Question About Federal Courts’

Power to Protect Constitutional

Rights in the Face of a State’s

Intentional Effort to Frustrate

Federal Review

This case once again presents this Court with a

fundamental question about the power of the federal

judiciary to protect Constitutional rights in the face of

intentional efforts to frustrate that power. Just as in

Whole Woman’s Health, the Court is asked whether

States may effectively annul Constitutional rights by

virtue of enacting statutes that pass off enforcement

authority to the populace at large. As it has done

before, the Court should conclusively answer the

question in the negative. It is not an overstatement

to recognize, as the Chief Justice already has, that

“the role of the Supreme Court in our constitutional

system” is at stake. Whole Woman’s Health, 595 U.S.

at 62 (Roberts, C.J., concurring in part).

Indeed, the statements by Governor Walz and

Attorney General Ellison made throughout the

litigation are unequivocally clear. Through the Act,

the State officials seek to restrict employer’s free

speech rights under the First Amendment and

regulate conduct under the NLRA. As Governor Walz

stated, “You go to jail now if you [have captive

audience speeches] in Minnesota” and “We’re going to

continue to ban those meetings.”

Similarly, as

Attorney General Ellison stated, “if workers are trying

to form a union, management should not be able to

hold mandatory meetings to spread anti-union

propaganda.”

These statements make clear the State seeks

to circumvent the First Amendment and this Court’s

precedent, which conclusively holds that laws such as

the Act violate the First Amendment and are

preempted by the NLRA. See Chamber of Commerce

v. Brown, 554 U.S. 60 (2008); San Diego Building

Trades Council v. Garmon, 359 U.S. 236 (1959).

In Terry v. Adams, the Court considered

whether Texas violated the Fifteenth Amendment by

“circumvention” when it permitted a political

organization to hold white-only primaries that

effectively dictated who held office in a particular

county. 345 U.S. 461, 469 (1953). The Court held it

was “immaterial that the state [did] not control” the

part of the elective process that it left for the

organization to manage. Id. The primaries were

“purposefully designed to exclude” Black people from

voting “and at the same time to escape the Fifteenth

Amendment’s command.” Id. at 463–64. This Court

determined the primaries constituted reviewable

state action and found Texas had engaged in “flagrant

abuse of [election] processes to defeat the purposes of”

the Constitution. Id. at 469.

The same is true of other, similar cases this

Court has heard. See, e.g., Gilmore v. City of

Montgomery, 417 U.S. 556, 568–69 (1974) (affirming

injunction against a city policy granting segregated

private schools “exclusive access to public recreational

facilities”); Reitman v. Mulkey, 387 U.S. 369, 380–81

(1967) (holding unconstitutional a law providing as

“one of the basic policies of the State” a private right

to racially discriminate in the housing market

because such a policy would “significantly encourage

and involve the State in private discriminations”);

Anderson v. Martin, 375 U.S. 399, 404 (1964)

(enjoining requirement that a political candidate’s

race be listed on the ballot and emphasizing “that

which cannot be done by express statutory prohibition

cannot be done by indirection”).

And just last year, this Court reaffirmed the

fundamental maxim that “. . . a government official

cannot do indirectly what she is barred from doing

directly: [a] government official cannot coerce a

private party to punish or suppress disfavored speech

on her behalf.” Vullo, 602 U.S. at 190.

Indeed, in Whole Woman’s Health, the

petitioners warned that Texas’ enactment of S.B. 8

would “set a dangerous precedent that other States

will be sure to follow.” See Petition for Writ of

Certiorari at 26-27, Whole Woman’s Health v.

Jackson, 595 U.S. 30 (2021), No. 21-463, 2021 WL

4463052. That apt prediction has come to pass.

The use of a private-enforcement scheme is now

the go-to method for States wishing to pass statutes

restricting Constitutional rights. Hailey Martin, S.B.

H(8): Battle of the Bills and Private Enforcement, 92

U. Cin. L. Rev. 821 (2024) (“Across the nation, state

legislators have introduced bills with similar

enforcement schemes, covering a wide range of

issues.”); see, e.g., Cal. Bus. & Prof. Code § 22949.61 et

seq. (statute regulating assault weapons and

providing it shall be “enforced exclusively through

private civil actions”); Fla. Stat. § 1006.205 (providing

a private cause of action to “[a]ny student who is

deprived of an athletic opportunity” as a result of a

violation of Florida’s Fairness in Women’s Sports Act).

The pattern being exhibited is quickly

becoming common practice. The Court should seize

the opportunity here to solidify its Whole Woman’s

Health holding, make clear to the States that privateenforcement schemes intended to bypass federal

judicial review of unconstitutional statutes will not

withstand scrutiny, and end the proliferation of

similar statutes. Petitioners fear that failure to do so

will end with “the constitution itself becom[ing] a

solemn mockery.” Peters, 5 Cranch at 136.

Petitioners respectfully request this Court

grant this Petition, and reverse the Eighth Circuit’s

error.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

/s/ Thomas R. Revnew

Jacob D. Multer

LITTLER MENDELSON

One Century Tower

265 Church Street

Suite 300

New Haven, CT 06501

January 15, 2026

Thomas R. Revnew

Counsel of Record

Kurt J. Erickson

LITTLER MENDELSON

1300 IDS Center

80 South 8th Street

Minneapolis, MN

55402.2136

612.630.1000

trevnew@littler.com

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: Opinion of the United States

Court of Appeals for the Eighth Circuit,

Minnesota Chapter of Associated Builders and

Contractors, et al. v. Keith Ellison, et al., No. 24,

3115 (September 3, 2025) ....................................

APPENDIX B: Order of the United States Court

of Appeals for the Eighth Circuit Denying

Petition for Rehearing En Banc, Minnesota

Chapter of Associated Builders and Contractors,

et al. v. Keith Ellison, et al., No. 24, 3115

(November 3, 2025)..............................................

16a

APPENDIX C: Transcript of Motion Hearing

Before United States District Court, District of

Minnesota, Minnesota Chapter of Associated

Builders and Contractors, et al. v. Timothy

Walz, et al., File No. 24-cv-536 (September 16,

2024) .....................................................................

17a

APPENDIX D: Minnesota Statutes, Section

181.531 – Employer-sponsored meetings or

communications ...................................................

59a

APPENDIX E: United States Constitution,

Amendment I .......................................................

62a

APPENDIX F: United States Code, Title 29,

Chapter 7, Subchapter II, Section 158 ...............

63a

APPENDIX A

United States Court of Appeals

For the Eighth Circuit

————

No. 24-3116

————

Minnesota Chapter of Associated Builders and

Contractors; National Federation of Independent

Business, Inc.; Laketown Electric Corporation

Plaintiffs - Appellees

Keith M. Ellison, in his official capacity as Attorney

General of Minnesota; Nicole

Blissenbach, in her official capacity as the

Commissioner of the Minnesota

Department of Labor and Industry; Timothy Walz, in

his official capacity as

Governor of the State of Minnesota

Defendants – Appellants

————

Chamber of Commerce of the United States of

America; National Association of WholesalerDistributors; National Retail Federation; Coalition

for a Democratic Workplace

Amici on Behalf of Appellee(s)

————

Appeal from United States District Court

for the District of Minnesota

————

Submitted: June 11, 2025

Filed: September 3, 2025

————

Before LOKEN, ERICKSON, and KOBES, Circuit

Judges.

————

KOBES, Circuit Judge.

The Minnesota Chapter of Associated Builders and

Contractors and two other associations (MNABC)

sued Attorney General Keith Ellison, Department

of Labor and Industry Commissioner Nicole

Blissenbach, and Governor Timothy Walz seeking to

enjoin the defendants from enforcing the “EmployerSponsored Meetings or Communication Act.” The

district court denied the defendants’ motion to dismiss for lack of subject matter jurisdiction based on

state sovereign immunity. We reverse.

The Act is an anti-captive audience law which

prohibits employers from “tak[ing] any adverse

employment action against an employee” for

“declin[ing]” to attend meetings or receive communications where an employer disseminates its opinion

“about religious or political matters.” Minn. Stat.

§ 181.531, subd. 1(1). It provides a private right of

action for “aggrieved employee[s],” id. at subd. 2, and

requires employers to post a “notice of employee

rights” under the Act “within the workplace,” id. at

subd. 3(b). It was amended to require the Commissioner to “develop an educational poster providing

notice of employees’ rights provided.” Id. at subd.

3(a).

Immediately after MNABC filed this lawsuit, the

Attorney General and the Commissioner filed

materially identical declarations stating each had

“not enforced” or “threatened to enforce” the Act and

had “no present intention to commence” enforcement

proceedings. After it was amended, the Commissioner

reaffirmed her previous declaration disavowing any

intentions, past or present, to enforce the Act.

The Governor was not an original defendant, but

after enactment, he told the audience at a trade

union conference that “Minnesota was going to ban

that practice, of having those captive anti-union

meetings. You go to jail now if you do that in

Minnesota because you can’t intimidate people.”

MNABC amended their complaint, adding the

Governor as a defendant. While running for Vice

President, the Governor continued to laud the Act:

“We banned those damn captive-audience meetings

for good in Minnesota. Last time I said that at a

union meeting, they sued me over it. It was the best

thing to get sued over I ever said. We’re going to

continue to ban those meetings.” No one can be jailed

under the Act, and everyone agrees that the

Governor misstated the law.

The defendants asserted state sovereign immunity

and moved to dismiss the complaint, factually attacking the court’s subject matter jurisdiction. See

Fed. R. Civ. P. 12(b)(1). The Governor and Commissioner argued they did not have “a sufficient

connection to the Act’s enforcement,” and the

Attorney General and Commissioner declared they

did not have “present intent” to enforce the Act. The

district court denied the motion, and the defendants

bring this interlocutory appeal.

“We have jurisdiction over interlocutory appeals

involving Eleventh Amendment immunity, which we

review de novo.” Wolk v. City of Brooklyn Ctr., 107

F.4th 854, 858 (8th Cir. 2024) (citations omitted). In a

factual attack on subject matter jurisdiction, we

consider “‘matters outside the pleadings,’” such as

declarations, and the nonmoving party does “not

enjoy the benefit of the allegations in its pleadings

being accepted as true.” Branson Label, Inc. v. City of

Branson, 793 F.3d 910, 915 (8th Cir. 2015) (citation

omitted).

“Generally, States are immune from suit under the

terms of the Eleventh Amendment and the doctrine

of sovereign immunity.” Whole Woman’s Health v.

Jackson, 595 U.S. 30, 39 (2021). However, Ex parte

Young provides a “narrow exception” by “allow[ing]

certain private parties to seek judicial orders in

federal court preventing state executive officials from

enforcing state laws that are contrary to federal law.”

Id. (citing Ex parte Young, 209 U.S. 123, 159–60

(1908)). To be a proper Ex parte Young defendant, the

official must have “some connection with the

enforcement” of the challenged law and “threaten

and [be] about to commence proceedings.” Ex parte

Young, 209 U.S. at 156–57. We consider each

defendant’s role—connection with enforcement and

imminence—lest we “make the state a party” and

violate its sovereign immunity. Id. at 157.

Beginning with the Governor, the district court

held that his speeches “combined with the ability to

remove a commissioner who might not feel as zealous

about this law” is enough to make him an Ex parte

Young defendant. See Minn. Stat. § 4.04, subd. 1

(“The governor shall appoint . . . all officers . . . whose

selection is not otherwise provided for by law and, at

pleasure, may remove any such appointee whose

term of service is not by law prescribed.”). But

removal power does not have sufficient connection

with enforcement of the Act. The Governor’s power to

remove the Commissioner is “incident[al]” to his

power to appoint her. See Krakowksi v. City of St.

Cloud, 101 N.W.2d 820, 825 (Minn. 1960). And a

governor “appointing members of [a commission] is

an administrative act” which “does not give [him]

some connection” to enforcement. Church v. Missouri,

913 F.3d 736, 750 (8th Cir. 2019). Appointment or

selection is “an administrative or ministerial” act—

not an enforcement action within the meaning of Ex

parte Young—because it is “not analogous to

enforcing the [statute] through a civil or criminal

prosecution.” Balogh v. Lombardi, 816 F.3d 536, 546

(8th Cir. 2016). We see no legally significant

distinction between appointment and removal: both

are “administrative or ministerial” acts with an

insufficient connection to enforcement. See id.

(“[D]irector’s authority to define the members . . . is

not an enforcement action.” (emphasis added)).

The “fiction” of Ex parte Young confirms that

removal is an administrative or ministerial act. See

Church, 913 F.3d at 747 (quoting Va. Off. for Prot. &

Advoc. v. Stewart, 563 U.S. 247, 255 (2011)). An Ex

parte Young suit is brought against a state officer in

his official capacity. 209 U.S. at 157. “[T]he relief

sought is only nominally against the official and in

fact is against the official’s office and thus the

sovereign itself.” Lewis v. Clarke, 581 U.S. 155, 162

(2017). Even if the Governor were to remove the

Commissioner for her lack of zeal to enforce the Act,

her successor would “automatically assume [her] role

in the litigation” and would be bound by any ruling

enjoining the Commissioner from enforcing the Act.

Id.

Appointing or removing a commissioner is “too far

removed” from enforcement to bring the Governor

within the Ex parte Young exception. See McNeil v.

Cmty. Prob. Servs., LLC, 945 F.3d 991, 996 (6th Cir.

2019) (Sutton, J.).

MNABC also defends the decision below by arguing

the Governor has some connection with enforcement

because he “may employ counsel to act in any action

or proceeding if the attorney general is in any way

interested adversely to the state.” Minn. Stat. § 8.06.

Since all parties agree that the Attorney General has

some connection with enforcement, it stands to

reason that counsel appointed under § 8.06 would

too. While appointing and removing the Commissioner is an “administrative or ministerial” act not

rising to the level of enforcement, “employ[ing]”

outside counsel goes beyond merely appointing or

removing a person to fulfill a statutory role. The

appointed counsel would serve at the Governor’s

“direct[ion],” which provides the requisite “method[]

of enforcement.” Church, 913 F.3d at 749. MNABC

does not argue that the Governor has made any

overtures to employ outside counsel, even though the

Attorney General has disavowed any present intent

to enforce the Act. That the Governor “might in the

future” appoint outside counsel and the appointed

counsel “might then undertake enforcement action”

against MNABC “is a series of hypotheticals” which

cannot support an Ex parte Young suit against the

Governor at this time. See Whole Woman’s Health,

595 U.S. at 44.

Shifting to the Commissioner, the district court

held that she is a proper Ex parte Young defendant

because enforcement need not be “pure traditional

prosecutorial authority” and the Act is “replete with

examples of things that [she] does in support of the

enforcement.” Minnesota correctly argues that the

Commissioner’s duties under the Act are ministerial

and not enforcement.

The Act empowers “[a]n aggrieved employee” to

“bring a civil action to enforce this section.” Minn.

Stat. § 181.531, subd. 2. The Commissioner cannot.

Instead, her only duty is to “develop an educational

poster providing notice of employees’ rights provided

under this section.” Minn. Stat. § 181.531, subd. 3(a).

MNABC argues that this duty is like the one in

Worth v. Jacobson, where we held that “making

application forms available on the internet” is a

“dut[y] connected with [a] statute’s enforcement.” 108

F.4th 677, 684 n.3 (8th Cir. 2024). That statute

criminalized carrying handguns in public places

without a permit, and an applicant had to be “at least

21 years old” to apply for a permit. Id. at 683 (quoting

Minn. Stat. § 624.717, subd. 2(b)(2)). The application

forms were “key” to the State’s enforcement of the

statute because they required applicants to provide

their dates of birth. Id. at 684 n.3. But developing an

educational poster, while informing potentially aggrieved employees of their rights, does not facilitate

any information enabling enforcement to flow back to

the State. In other words, the State’s enforcement

machinery does not benefit from the development of

the poster so it lacks “some connection” with enforcement. See Whole Woman’s Health, 595 U.S. at 41

(holding clerks who “set in motion the ‘machinery’ of

court proceedings” are not connected to enforcement).

MNABC argued below that the prefatory clause to

the “Attorney General Enforcement” provision of the

employment chapter gives the Commissioner enforcement authority. It states that “[i]n addition to the

enforcement of this chapter by the department, the

attorney general may enforce this chapter under

section 8.31.” Minn. Stat. § 181.1721 (emphasis

added). But § 181.1721 “explicitly grant[s] the

Attorney General power . . . to enforce the wage laws”

of chapter 181. Madison Equities, Inc. v. Off. of Att’y

Gen., 967 N.W.2d 667, 672 (Minn. 2021) (emphasis

added). The clause does not give the Commissioner

independent authority to enforce the chapter, but

instead refers to other provisions of the employment

chapter where she is given explicit enforcement

powers. E.g., Minn. Stat. § 181.722, subd. 4(b) (“This

section [prohibiting misrepresentation of employment

relationship] may be investigated and enforced under

the commissioner’s authority under state law.”);

§ 181.723, subd. 7(h) (“This section [prohibiting misclassification of construction employees] may be

investigated and enforced under the commissioner’s

authority under state law.”).

Moreover, the Act is not one of the enumerated

sections of labor law with which the Legislature gave

the Commissioner the power to “requir[e] an employer to comply” and to “bring an action in the district

court . . . to enforce or require compliance.” Minn.

Stat. § 177.27, subds. 4, 5. Interpreting the Attorney

General Enforcement provision to grant the Commissioner enforcement authority over the entire employment chapter would render the Legislature’s

choice to grant the Commissioner enforcement authority over specific sections in § 177.27 superfluous.

See State v. Culver, 941 N.W.2d 134, 141 n.3 (Minn.

2020) (“Whenever it is possible, no word, phrase, or

sentence should be deemed superfluous, void, or

insignificant.” (citation omitted)).

The Commissioner also has the authority to “enter

. . . and inspect places of employment” and to

“investigate facts, conditions, practices or matters as

the commissioner deems appropriate to enforce the

laws” within her jurisdiction. Minn. Stat. § 175.20.

Although this section is titled “Enforcement” and

gives the Commissioner power “to enforce” the laws

within her jurisdiction, the use of “enforce” is not

dispositive. The substance of the law is. See Nat’l

Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 544–45

(2012). Section 175.20 allows the Commissioner to

“investigate” employers. Investigating an employer

may increase an employer’s compliance with the Act,

but it “does not rise to the level of compulsion or

constraint needed” for enforcement. Mi Familia Vota

v. Ogg, 105 F.4th 313, 332 (5th Cir. 2024); see also

Jones v. Jegley, 947 F.3d 1100, 1103 n.2 (8th Cir.

2020) (holding that investigating when paired with

“lev[ying] fines” and “mak[ing] referrals to law enforcement” is “a ‘strong enough’ connection” to enforcement (citation omitted)). So the Commissioner

does not have “some connection with the enforcement” of the Act to make her a proper Ex parte Young

defendant as her role in the Act is “ministerial or

administrative.”

Last, the Attorney General. There is no dispute

that he has power to enforce the Act, see Minn. Stat.

§ 181.1721, but the parties disagree whether he has

sufficiently threatened to enforce the Act to make

him a proper Ex parte Young defendant. The district

court rejected his declaration disclaiming any past or

“present intent[]” to commence proceedings, finding

that “the imminent threats related to enforcement”

from the Governor were “enough” for the Attorney

General

10a

to have enforcement intent. Minnesota argues that

the district court erred when it transferred the

Governor’s enforcement intent to the Attorney

General.

Under Ex parte Young, “such officer must have

some connection” with enforcement “by virtue of his

office.” 209 U.S. at 157 (emphasis added); see also

Whole Woman’s Health, 595 U.S. at 45 (holding that

some “defendants f[e]ll within the scope of Ex parte

Young’s historic exception to state sovereign immunity” based upon their connection to S.B. 8 while

relief against others was “foreclose[d]”). Ex parte

Young “rests on the premise” that “a federal court

command[ing] a state official to do nothing more than

refrain from violating federal law” does not violate a

state’s sovereign immunity. Stewart, 563 U.S. at 255.

This has always required an analysis of the defendant’s specific role in enforcement or else it would

merely be an “attempt[] to make the state a party.”

See Ex parte Young, U.S. at 157–61. So we must

address whether the Attorney General’s declaration

is sufficient to disclaim any intent to enforce the Act.

We have held that the “proper standard” in assessing whether an officer is entitled to Eleventh

Amendment immunity is whether his affidavit

establishes his “‘unwillingness to exercise [his] ability

to prosecute’” a claim against the plaintiffs. Minn.

RFL Republican Farmer Lab. Caucus v. Freeman, 33

F.4th 985, 992 (8th Cir. 2022) (citation omitted). In a

factual attack, like the review of the preliminary

injunction in Freeman, we “look outside the pleadings

to affidavits or other documents” to establish jurisdictional facts by a preponderance of the evidence.

Moss v. United States, 895 F.3d 1091, 1097 (8th Cir.

2018). In Whole Woman’s Health, the Supreme Court

11a

did just that. When a private citizen defendant

“supplied sworn declarations” attesting “he possess[ed] no intention” to enforce the statute, a unanimous Supreme Court held that plaintiffs “[could not]

establish ‘personal injury fairly traceable to

[defendant’s] allegedly unlawful conduct’” and remanded for the claims against this defendant to be dismissed for lack of standing. Whole Woman’s Health,

595 U.S. at 48 (citation omitted). 1 This case is

similar. The Attorney General’s declaration attests to

having “no present intention to commence” enforcement, so MNABC lacks standing to sue, divesting the district court of subject matter jurisdiction.

Auer v. Trans Union, LLC, 902 F.3d 873, 877 (8th

Cir. 2018); see Yeransian v. B. Riley FBR, Inc., 984

F.3d 633, 637 (8th Cir. 2021) (affirming 12(b)(1)

dismissal based on a factual attack because plaintiff

lacked standing).

MNABC argues that the Attorney General’s declaration does not “override” his statutory obligations.

“[S]ome duty in regard to the enforcement” is not

enough: Ex parte Young also requires the officer to

“threaten and [be] about to commence proceedings.”

209 U.S. at 156. By ignoring this “about to commence

proceedings” requirement, MNABC’s position effectively collapses the Ex parte Young exception to req1

Although this defendant was a private individual, the Fifth

Circuit had held that his appeal was “inextricably intertwined”

with the state defendants’ Eleventh Amendment immunity

claims. Whole Woman’s Health v. Jackson, 13 F.4th 434, 447

(5th Cir. 2021) (per curiam). Before the Supreme Court, “no one

contest[ed] this decision.” Whole Woman’s Health, 595 U.S. at

48. As the Eleventh Amendment provided appellate jurisdiction

and the Supreme Court analyzed his defense in the same

manner as other state defendants, we find the law apposite for a

state officer.

12a

uire only “some connection with the enforcement” of

the Act.

Amicus refines MNABC’s argument, asserting that

the imminence of enforcement proceedings is irrelevant at the motion to dismiss stage. See Verizon Md.,

Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645

(2002) (“In determining whether the doctrine of Ex

parte Young avoids an Eleventh Amendment bar to

suit, a court need only conduct a ‘straightforward

inquiry into whether the complaint alleges an

ongoing violation of federal law and seeks relief

properly characterized as prospective.’” (quotation

omitted) (cleaned up)); Whole Women’s Health, 595

U.S. at 45 (official “who may . . . take enforcement

actions” is proper Ex parte Young defendant (emphasis added)). This is true for facial attacks on

jurisdiction where “the non-moving party receives the

same protections as it would defending against a

motion brought under Rule 12(b)(6).” Carlsen v.

GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016)

(citation omitted); see also Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (plaintiffs must only plead “sufficient

factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face’” (citation omitted)).

The same is not true for factual attacks where we

“consider[] matters outside the pleadings.” Carlsen,

833 F.3d at 908 (emphasis added). A defendant

supplying a declaration is relevant to whether

plaintiffs have standing.

We reverse and remand with instructions to

dismiss with prejudice the claims against the

Governor and Commissioner and to dismiss without

prejudice the claim against the Attorney General.

LOKEN, Circuit Judge, dissenting.

13a

This is a pre-enforcement action by private parties

to enjoin the Minnesota Governor, Attorney General,

and Commissioner of the Department of Labor and

Industry (the Commissioner) from enforcing the

Employer-Sponsored Meetings or Communication

Act, Minn. Stat. § 181.531, an anti-captive audience

law that prohibits Minnesota employers from discharging or otherwise penalizing an employee who

declines to attend or participate in an employersponsored meeting or communication “to communicate the opinion of the employer about religious or

political matters,” as broadly defined. Under the Act,

private individuals may bring a civil action to enforce

its provisions, and the Attorney General and the

Commissioner have independent enforcement authority. During a speech at a public employees convention

in August 2024, the Governor stated, “We banned

those damn captive-audience meetings for good in

Minnesota. Last time I said that at a union meeting,

they sued me over it. . . . We’re going to continue to

ban those meetings.” Plaintiffs claim the Act

regulates employer speech in violation of the First

Amendment and is preempted by the federal National Labor Relations Act. Defendants argue they are

entitled to Eleventh Amendment sovereign immunity.

As the court acknowledges, this interlocutory

appeal turns on whether the “narrow exception” to

Eleventh Amendment immunity that the Supreme

Court adopted in Ex parte Young applies to permit

plaintiffs to seek a federal court order preventing the

defendant executive officials from enforcing a state

law that is contrary to federal law. Under prevailing

Supreme Court authority, the answer to that difficult

question turns on whether each official has “some

connection with the enforcement” of the Act and has

14a

threatened or is about to commence enforcement

proceedings. 209 U.S. 123, 156-57 (1908). See Whole

Woman’s Health v. Jackson, 142 S. Ct. 522, 535-36,

544 (Roberts, C.J., concurring in the judgment and

dissenting in part), 545 (Sotomayor, J., concurring in

the judgment in part and dissenting in part). This is

a complex, fact-intensive inquiry. In Jones v. Jegley,

947 F.3d 1100, 1103 n.2 (8th Cir. 2020), we concluded

“a ‘strong enough’ connection” to enforcement was

shown. In Minnesota RFL Repub. Farmer Labor

Caucus v. Freeman, 33 F.4th 985, 992 (8th Cir. 2022),

we concluded the defendants’ showing that they had

not enforced or threatened to enforce the statute at

issue and affidavits stating they have no present

intention to commence enforcement proceedings were

sufficient to entitle them to immunity.

The district court ruled from the bench at the end

of a lengthy hearing on defendants’ motion to

dismiss. The transcript of that hearing, RDoc 62, was

filed September 20, 2024. After correctly stating the

above-summarized standard for applying the Ex

parte Young exception -- that each defendant has an

adequate connection to enforcing or threatening to

enforce the Act -- the court rejected the broad conflicting contentions of plaintiffs and the three

defendants, denied plaintiffs’ request that the court

sua sponte grant summary judgment in their favor,

and emphasized that further developments as the

case progresses, including discovery, could change

the landscape and cause the applicability of the Ex

parte Young exception to be re-appraised. On the

record before it, the court then concluded:

-- the Governor’s authority to appoint and remove the

Commissioner, and his speeches saying if you violate

the law you will go to jail, “evince a commitment to

15a

enforcing the law and a threat of enforcing the law

that is unique among all the cases I could find,” a

“robust tie to threatening to enforce the law;”

-- the Commissioner has an adequate connection to

enforcing or threatening to enforce the Act because

“the statute is replete with examples of things the

commissioner does in support of enforcement of this

law;” and

-- the Attorney General “actually has enforcement

ability;” he “has taken the least action but has the

strongest connection with the enforcement of this

statute.”

In this First Amendment case, the court further

observed, “there is something unique about public

threats to enforce this law” that creates extra concern

for chilling protected speech. Minnesota Chapter of

Associated Builders and Contractors v. Timothy

James Walz et al., File No. 24-cv-536, RDoc 62,

Motion Hearing Tr. 35-44 (D. Minn. Sept. 20, 2024).

In my view, the limited record on defendants’

motion to dismiss fully supports the district court’s

analysis and conclusions. Whether the standard of

review is de novo or abuse of discretion, I would

affirm the denial of defendants’ motion to dismiss

based on state sovereign immunity for the reasons

stated by the district court. Accordingly, I

respectfully dissent.

16a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

————

No: 24-3116

————

Minnesota Chapter of Associated Builders and

Contractors, et al.

Appellees

Keith M. Ellison, in his official capacity as Attorney

General of Minnesota, et al.

Appellants

Chamber of Commerce of the United States of

America, et al. Amici on Behalf of Appellee(s)

————

Appeal from U.S. District Court

for the District of Minnesota

(0:24-cv-00536-KMM)

————

ORDER

The petition for rehearing en banc is denied. The

petition for panel rehearing is also denied.

Judge Loken, Judge Shepherd, and Judge Grasz

would grant the petition for rehearing en banc.

November 03, 2025

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Susan E. Bindler

17a

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

————

File No. 24-CV-536

(KMM/ECW)

————

Minneapolis, Minnesota

September 16, 2024

1:57 p.m.

————

Minnesota Chapter of

Associated Builders and

Contractors, Inc., National

Federation of Independent

Business, Inc., and Laketown

Electric Corporation,

Plaintiffs,

vs.

Timothy James Walz, in his

official capacity as Governor

of the State of Minnesota,

Keith Ellison, in his official

capacity as Attorney General

of State of Minnesota, Nicole

Blissenbach, in her official

capacity as the Commissioner

of the Minnesota Department of

Labor and Industry,

Defendants.

————

18a

BEFORE THE HONORABLE KATHERINE M.

MENENDEZ UNITED STATES DISTRICT COURT

JUDGE (MOTION HEARING)

Proceedings reported by certified stenographer;

transcript produced with computer.

APPEARANCES:

For the Plaintiffs:

Littler Mendelson

THOMAS R. REVNEW, ESQ.

KURT J. ERICKSON, ESQ.

80 South Eighth Street

Suite 1300

Minneapolis, Minnesota 55402

For the Defendants: Minnesota Attorney General’s

Office

NICHOLAS J. PLADSON, ESQ.

BENJAMIN HARRINGA, ESQ.

445 Minnesota Street

Suite 1400

St. Paul, Minnesota 55101

Court Reporter:

PAULA K. RICHTER, RMRCRR-CRC

300 South Fourth Street

Minneapolis, Minnesota 55415

PROCEEDINGS

IN OPEN COURT

THE COURT: Welcome, everyone. We are here for

a first hearing on a second motion related to

dismissing in this matter. Let’s get appearances on

the record, first on behalf of the plaintiffs.

MR. REVNEW: On behalf of the plaintiffs, Tom

Revnew, appearing with my co-counsel, Kurt

Erickson.

19a

THE COURT: All right. Great. Welcome to both of

you. You’ve been around a long time. I’m surprised

you didn’t stand up.

MR. REVNEW: I apologize, Your Honor.

THE COURT: Don’t worry about it. My whole

career was in federal court, so the whole idea of ever

sitting in court, I didn’t even know that was a thing

until I started working with some people who would

come over from state court. I’m just giving you a little

grief.

And are you going to be arguing, sir?

MR. REVNEW: I am, Your Honor.

THE COURT: Great. Thank you.

And here on behalf of the defendants.

MR. PLADSON: Nick Pladson and my colleague,

Ben Harringa.

THE COURT: Okay. Great. And are you going to be

[4] arguing, Mr. Pladson?

MR. PLADSON: Yes.

THE COURT: Thank you.

Let’s go ahead and get started. So my hope for

today’s argument is that we can focus on any things

that have changed since the last time we had this

conversation and really kind of focus in on any new

case law or new authority that anyone would like to

draw to my attention and certainly the changed and

evolved factual landscape.

I would like our conversation to include all of the

things that are now before me, so both the amended

complaint and the supplemented complaint. And I

didn’t look today. There’s nothing new?

20a

MR. PLADSON: (Shakes head.)

THE COURT: Okay. So I’d just like to have a

conversation about that.

It is my intention to very likely rule from the bench

today because I’d like to get this matter tied up.

So let’s go ahead and get started, and I think I’ll

begin with you, Mr. Pladson, if you don’t mind

coming to the podium.

MR. PLADSON: Good afternoon, Your Honor. THE

COURT: Good afternoon. How are you? MR.

PLADSON: I’m all right.

THE COURT: So we are in factual attack land [5]

again, correct?

MR. PLADSON: Correct.

THE COURT: That means you don’t get the normal

benefit of – or that the plaintiffs don’t get the normal

benefit of assuming that the facts in the pleading are

correct as to this question, right?

MR. PLADSON: That’s right.

THE COURT: Tell me how you think I assess that,

what difference you think that makes to the calculus.

MR. PLADSON: Well, I think the calculus, you

have to look at what facts have been submitted and

properly either authenticated or submitted and are

admissible for consideration at this juncture. Right

now we have affidavits regarding two statements

made by Governor Walz that are in the record, and I

don’t dispute that those are – they are what they are.

THE COURT: You’re not raising an evidentiary

challenge to the fact that these things have been said.

MR. PLADSON: No, not at all.

21a

And the other thing, though, is that there aren’t

any other statements of, you know, admissible facts

in the record. Right now we’ve got an unverified

complaint, which is insufficient to oppose a

dispositive motion.

THE COURT: Is this in your brief?

MR. PLADSON: Yep.

[6]

THE COURT: Okay. So what would it need to do to

be verified and sufficient to avoid a motion?

MR. PLADSON: Well, I think in this context, they

would have to submit evidence that they have – they,

the defendants – or the plaintiff, excuse me, have

been threatened or that the defendants here are

about to commence proceedings to enforce the act

against them specifically.

THE COURT: Oh, I understand what you think the

showing has to be. Are you arguing that I can’t

consider anything – so, for instance, I’ve got the

allegations in the complaint that include the

amendment to the law and the requirement of the

website notifying people to hang posters. You agree I

can consider that?

MR. PLADSON: You can consider that. I think that

exists outside of the – it’s a matter of public record

what the law is and what the amendment is and

what has transpired there. I think where the factual

deficiencies are are with what the plaintiffs have

demonstrated as to themselves.

THE COURT: And tell me what you think – you

mean you think that this factual record that I have

before me isn’t enough to show threatened

enforcement.

22a

MR. PLADSON: Yes, that’s exactly right.

THE COURT: But you’re not asking me to hold an

evidentiary hearing to require them to introduce, say,

the new website, the Walz tapes, any of that?

[7]

MR. PLADSON: No. We’re fine with those being in

there. They speak for themselves.

THE COURT: Okay. I’m just trying to make sure

we are all in agreement about what the record before

the Court is and we’re talking about the significance

or the weight to afford to that record, right?

MR. PLADSON: That’s right.

THE COURT: Very good. So tell me why you think

the Walz speeches don’t matter.

MR. PLADSON: They don’t contain a threat of any

kind. They simply –

THE COURT: What about, “You’ll go to jail”?

MR. PLADSON: It’s inaccurate. It’s not true.

THE COURT: I recognize that, but it’s also far

harsher than the reality of remedy that’s available. I

mean, threat of enforcement, why doesn’t that count?

MR. PLADSON: Number one, it’s not threatened

towards these plaintiffs, so that’s part of our argument.

Number two, the governor has no connection with

the enforcement of the law. He’s charged with

ensuring that the laws are faithfully executed under

the state constitution. He has no specific or even

general authority to enforce Section 181.531 or any of

its parts. And there’s no indication that any of the

other things that might have happened that could

23a

get, you know, his hands deeper involved [8] in this

case, such as a directive to a cabinet member or a

directive to the attorney general, there’s no evidence

that any of that has happened or that he’s taken any

of those steps. All we have are these two statements,

these sort of soapbox campaign speeches, essentially.

THE COURT: What about him saying, I got sued

for this; there’s nothing I’d rather get sued for? That,

you know, really intimately kind of ties himself up

with the law and, frankly, recognizes that there’s a

lawsuit about this law that he’s kind of saying, bring

it on, and yet you’re standing here saying, do not

bring it on.

MR. PLADSON: Well, I’m saying that he is not a

proper defendant in this case because he has no

connection to actually enforcing this law. So let’s say

that we go forward and the Court is about to enter an

injunction of declaratory relief. What would the

injunction do to Governor Walz? It would have to

apply to him in some way that stops him from doing

something that he’s allowed to do. There’s nothing

that he’s allowed to do under the state law or that

he’s even shown an indication of that would connect

him with the enforcement, it would be purely

illusory.

And so when we’re looking at the remedies and

who the proper parties are here, I think you need to

look at what the action is that they otherwise could

take that the injunction would do to either prevent or

limit or modify.

[9]

THE COURT: So in Whole Woman’s Health, one of

the things the Court grappled with at length is the

extent to which the various defendants or hypo-

24a

thesized defendants were appropriate defendants.

And the Court landed on these licensing agents who

had, arguably, pretty tangential, if any, tie to enforcement of the law, and the Court found that that

was enough to create a connection.

Help me understand why that doesn’t strengthen

the claim that Governor Walz is, at least at this stage

where he retains the ability, for instance, to instruct

his commissioner to take action that’s consistent with

his campaign speeches, discipline his commissioner

for not taking action that’s consistent with his

campaign speeches, where is the daylight between

Governor Walz and the licensing agents in Whole

Woman’s Health?

MR. PLADSON: I think in Whole Woman’s Health,

we’re on a 12(b)(6). That’s what they confronted

there. Here, we’re on a 12(b) (1). We’re looking at the

fact of the matter and what the connection is. And

here there is no steps that have been taken to create

a connection.

You know, one of the arguments is that he could

hire his own attorneys if he had a disagreement with

the attorney general. He hasn’t done that. There’s no

evidence that that’s imminent or forthcoming, much

less that he could enforce that specific portion of the

law under that [10] particular provision should there

be a conflict between himself and the attorney

general.

I also think that in that case in particular, when

Whole Woman’s Health was remanded to the Fifth

Circuit, they then certified the question to the

Louisiana Supreme Court or maybe it’s the Texas

Supreme Court, whichever one –

THE COURT: Texas.

25a

MR. PLADSON: Yeah. And they determined that

there wasn’t, in fact, a connection. So looking at more

of a merits factual question that the licensing officials

weren’t, in fact, the proper parties to be sued or to be

defendants for that. So that’s sort of how that case

ended up playing out.

THE COURT: Thank you. One of the things that I

think is interesting in the language about the Ex

parte Young doctrine is it always uses the word

“threaten,” and I’m sort of struggling with what that

means when it comes to Governor Walz because he

can be heard to sort of be threatening enforcement of

this law. He’s bragging about it, and he is saying, if

you run afoul of this law, you will go to jail. It feels

threaty. But in the language of Ex parte Young, the

threat tends to be read hand in hand with

enforcement, threatened to enforce. So I’m trying to

decide – there are places, though, that when you read

the standard articulated, it includes to “threaten or

enforce,” [11] so threatening is enough.

And that was a big warmup to the observation that

in the First Amendment context, we always have

concerns about chilling, so that threats, even when

more remote or tethered to less robust ability to

enforce, has the effect of chilling.

And then we have the overlay of a private cause of

action statute, which is what caused Chief Justice

Roberts, I think such agita in Whole Woman’s Health,

is that you have a statute that has an enforcement

mechanism that drives around some of the

traditional actors in enforcing laws.

So tell me what you think I do with that and with

the idea of threats and chilling, aside from the

specific initiation of an enforcement action.

26a

MR. PLADSON: I think the concept of chilling is

appropriate in the Article III standing context, but

it’s a concept that is not applicable to the Ex parte

Young standard. And as we know from Freeman –

THE COURT: Do you have any case law for that

idea?

MR. PLADSON: Yes.

THE COURT: I mean, I do see that it arises in that

context, but do you have any case law drawing that

line?

MR. PLADSON: Well, Freeman vs. RFL, is

Republican [12] Farmer Labor Party of Minnesota,

this case has been up and down to the Eighth Circuit

a couple of times, and in both the district court

decisions from Judge Tostrud, they discuss how the

imminent standard is higher for an Ex parte Young.

The Eighth Circuit recognized an imminence of

threat that is much higher. You’ve got to meet a

higher standing than just plain Article III standing.

So it would be – the most recent one would be

Judge Tostrud’s district court decision from I think

2022, after the first remand.

THE COURT: 2022 is the Eighth Circuit’s decision.

So then he got another decision now?

MR. PLADSON: ‘23, yeah.

THE COURT: Okay.

MR. PLADSON: And incidentally, it was appealed

again and affirmed in July by the Eighth Circuit.

THE COURT: Okay. Thanks. That’s a good answer.

You don’t seem to dispute, particularly, that

Attorney General Ellison could be an appropriate

27a

defendant if he had threatened action or was taking

enforcement action?

MR. PLADSON: Yes. I think it’s clear the statute

gives him authority to do that if he chose to do so.

THE COURT: And then Commissioner Blissenbach

is the sort of in between?

[13]

MR. PLADSON: Right.

THE COURT: You’d concede that there’s all kinds

of duties that the statute has given her related to, if

not directly enforcing in terms of bringing a lawsuit,

certainly encouraging enforcement or doing things

that have to do with the enactment of the law.

Tell me why that isn’t enough. Why do we have to

hue, in this era – no disrespect to legislatures

intended, but they are clearly learning to carve

statutes to avoid pre-enforcement lawsuits. I think

it’s kind of hard to deny that. And in that era, why

isn’t it enough to strike as actionable all of the

trappings that go around a traditional enforcement

action but aren’t that traditional, “I’m going to bring

a lawsuit” or “I’m going to enjoin you.” Instead, it’s

advertising. It’s referring people to attorneys. It’s

inspecting properties with or without advance notice.

It’s running a website telling people what their rights

are. It’s doing all of the things to facilitate and

elevate those private rights of action, but it’s not

being on the front of the V.

So help me understand why you still think

Blissenbach isn’t an appropriate defendant.

MR. PLADSON: Right. Well, if you look at the

Balogh vs. Lombardi case from the Eighth Circuit – I

think it’s 2013 or ‘15; it’s in the briefs – we have a

28a

situation [14] there where the bureau – the director

of the Bureau of Prisons is appointing a panel, and

he’s engaged in selection of individuals who will be on

this panel regarding – I think it’s carrying out the

death penalty or certain determinations, and there’s

a law that precludes individuals from disclosing

information about who those individuals are, and

those panelists have a right of action if somebody

discloses.

Now, they attempted to – ACLU or somebody was

attempting to sue the governor – or excuse me, the

director of the prisons for his connection to this

because but for him appointing people, there wouldn’t

be individuals there to enforce this.

And here, I think what the Court says is that that

type of administrative or ministerial work in

implementing the statute is not the type of

enforcement that is envisioned by Ex parte Young,

and it’s taking action to actually bring about or

coercing change forcibly, you know, an affirmative

step to do so.

Now, here, the DLI commissioner – this is not the

only law that the DLI commissioner has this

authority over. She has general authority over five or

six different chapters of Minnesota law, so effectively

hundreds of laws. She provides information about

many laws, including those she doesn’t enforce. That

doesn’t make her a proper [15] defendant for the

federal laws that are listed on the website.

She refers people to attorneys if they call her, but

it’s primarily – to be clear, it’s not saying, go talk to

an attorney. It’s, I can’t provide you legal advice; you

know, we are not taking claims here; we’re not –

29a

THE COURT: Well, it’s actually in the statute that

they will refer to attorneys, right? It’s not just, oh, I

can’t answer this call, you’ve got to call a lawyer, my

standard answer when I make the mistake of

answering my phone. It is actually more than that.

One of the things she does is channel people to

attorneys through whom they can vindicate their

right.

MR. PLADSON: Sure. It’s actually not in the

statute. Where you find that – and this is where I

was getting clever was submitting exhibits – but the

legislative history, when the law was passed in 2023

– you’ll see these attached in our first round of

briefing – the DLI commissioner was asked for input

on how this law would affect their operations. The

commissioner that – the agency responded that we

don’t believe we have enforcement authority over

this; if people call us, we will simply refer them to

attorneys. Sort of not our – not our bailiwick here.

THE COURT: Got it.

[16]

MR. PLADSON: Get legal advice elsewhere.

So that is the extent of it, so I don’t want that to be

overstated.

THE COURT: Thank you. So you don’t think that

the website requiring posters is part of an

enforcement action here? I mean, the case law from

Minnesota RFL vs. Dayton, Care Committees I and II,

Whole Woman’s Health, other cases, the case law

includes, you don’t need to be the primary enforcer;

you don’t need to be the exclusive enforcer; there just

must “be some connection,” right? I’ve drawn those

from multiple sources, but they don’t require the

30a

best, the only, the absolute, the sole. And through

those together, you can imagine kind of a patchwork:

This person is involved in this way, this person is

involved in a different way.

So why don’t things like running a – putting on a

website that you have to put up posters telling people

that they can’t be required to attend these meetings

and telling people what their rights are if they are

required to attend these meetings, why isn’t that part

of a connection between the defendant and

enforcement of the law?

MR. PLADSON: So with respect to the first prong

of the Ex parte Young standard, I think that certainly

comes closer, and I think that was important for us to

notify the Court back in May of the change.

[17]

I think when you look at that particular provision,

it simply requires the DLI commissioner to create the

notice – notice of rights poster. The DLI commissioner creates many other notice of rights posters. It

doesn’t make them connected to the enforcement of

the law simply because when you look at that

subdivision, Subdivision 3 of the law, the new

amendment when it becomes effective next month,

when you look at that subdivision, it simply requires

her to create a poster. It doesn’t say anything about

her requirement to enforce that law or go out and

investigate.

Now, in her affidavit, she disclaims any intent to

investigate or enforce the notice posting requirement

as well, and so –

THE COURT: What’s the point of having this law if

its primary actor is refusing to enforce it?

31a

MR. PLADSON: Well, it’s not the primary actor.

The primary mechanism for enforcement is the public

through the right of action. There’s not an

administrative sort of prerequisite investigation like

you might have at EEOC or something where you

have to go to an administrative agency for an

investigation first. You can go right to court.

And so what the officials here have chosen to do is

to see, you know, to what extent is this private right

of action going to be sufficient to carry out the

purposes? Why do we need to invest state resources

enforcing this [18] particular law at this time? That’s

within their discretion as state officials to choose and

prioritize different things.

And I think in this case, particularly where they’ve

disclaimed any interest to do so, you know, any

particular official who’s in that position is going to

have different priorities, is going to have different

interests and going to have different plans for what

they’re going to do in office. And I think the prudent

decision that they believe they’ve made is, let’s see

what kind of a problem this is, and if the private

right of action is insufficient to address it, then we

can maybe revisit whether we need to take a more

bold step or whether the AG, for example, needs to

take more aggressive action.

THE COURT: Let me ask a theoretical, academic

type of question here, as you know I want to do. One

of the things I have been thinking a lot about in this

new legislative model with private right of action is

that if we get to the merits of the constitutionality of

this law now in this lawsuit, we will have excellent

lawyers on both sides, we will have somebody whose

job is to defend the constitutionality of a statute and

understands it very well.

32a

If we continue to say, oh, no, it’s a private right of

action, there can never be Ex parte Young satisfying

pre-enforcement lawsuit. We have to wait until [19]

an employer takes action, terminates or disciplines

an employee, gets sued, and then see how well that

lawyer versus that employer can litigate this

important constitutional issue.

One of the things that I feel like was going on with

the Court in Whole Woman’s Health is kind of a

concern that if you – you’re avoiding – you are

essentially evading constitutional review or you risk

evading constitutional review. So then it requires –

that employer might be a small unsophisticated

employer – to understand that they can bring a First

Amendment challenge in an employment case.

Isn’t this better?

MR. PLADSON: No, because we don’t have – what

is functional – what Ex parte Young requires is sort

of the functional equivalent of ripeness. And here,

because we have no threatened action, we have just

the hypothetical of how this law might apply. And the

Court in Whole Woman’s Health reiterates that

there’s no unequivocal right to a pre-enforcement

challenge.

And just because, you know, the traditional route is

to raise it as an affirmative defense – and I will say

that in Minnesota, if it is raised as an affirmative

defense and somebody challenges it, they’ve got to

notify the attorney general so the attorney general

can choose to [20] defend the law. And in that

context, you have an actual fact pattern to work with.

We’re not talking in the theoretical or the metaphysical about whether this – you know, how does

33a

this play out and how does the First Amendment

intersect with this.

And so all we’re simply saying is that at this point

under Ex parte Young, this is not ripe for federal

court adjudication. It doesn’t mean there couldn’t be

a cause of action in state court. It’s possible. I don’t

specifically know, and I’m not going to go over my

skis here in trying to describe how it might come up.

But I think here, where you’ve got nobody who has

expressed a threat or an intent to – who has a

connection to the law, that has not expressed an

intent or threat to commence proceedings to enforce

it, you don’t have a ripe action under Ex parte Young.

And that’s not the language they use. That’s

conflating it with ripeness and –

THE COURT: Yeah, yeah, but it’s an interesting

analogy.

MR. PLADSON: You’ve got to have an imminent

threat, and the Eighth Circuit says that imminent

threat has to be something more than ripeness under

Article III. So that’s where we land.

THE COURT: Okay. What else do you want me to

know?

[21]

MR. PLADSON: I would like you to grant our

motion to dismiss entirely.

THE COURT: I didn’t mean to be flip. Is there

anything else you want to share that you think I am

misperceiving or that has changed since our last

conversation?

MR. PLADSON: No, I don’t think there’s been

anything – well, the last conversation was before

the statute was amended. We think that still doesn’t

34a

change the ultimate outcome. This case fails on

prong two of Ex parte Young under any analysis,

whether you buy my argument about Commissioner

Blissenbach or not, that there’s no imminent threat

of enforcement here.

THE COURT: Can I ask you one last question

about the Governor Walz thing? You raise an

interesting point about thinking of the connection to

the statute through the lens of declaratory relief or

an injunction or something like that, and I’ll be the

first to admit that I’m just starting to understand

how difficult it is to actually grant injunctive relief, to

figure out what that looks like, what it means.

But what difference does it make, as a practical

matter, if – let’s hypothesize that I allow this case to

go forward and that Commissioner Blissenbach and

Attorney General Ellison are easy to – more obvious

to remain in the [22] case but that Governor Walz is

more difficult and I am on the fence.

If I allow him to remain in the case and it turns out

he’s unaffected if the plaintiffs are successful and if

there is injunctive relief, then the injunction just

doesn’t tie his hands in the end. If I determine that

there is action he could take, that his hands should

be tied if the plaintiffs are successful and if there’s

injunctive relief, then I include it.

Why does it matter? And I’m not talking Law

Review article. Why does it matter practically in this

case?

MR. PLADSON: If I understand the question

correctly, and correct me if I’m wrong, but if he does

not have the ability to – he doesn’t have the ability to

carry out what is specifically permitted to be enjoined

under Ex parte Young and sovereign immunity,

35a

which is the direct enforcement. I take the point

earlier about, you know, role in the process and you

could have, say, two entities or two officials who have

some, you know, complementary roles in the enforcement mechanism, but he has no role at all. You would

not be able to bind him in any sort of action

whatsoever. The declaration would be either – the

injunction would be illusory.

And I think there’s a helpful analog to –

[23]

THE COURT: But what difference does it make

now? I mean, that’s what I’m trying to sort out. So

let’s say you lose and I leave him in, and at the end,

you’re right. Let’s say also the plaintiffs win on the

merits, which I am not at all presupposing. And then

it comes time to draft that injunction and I’m like, oh,

yeah, there’s really nothing to tie Governor Walz’s

hands with. And I’m not being cavalier about this.

But he’s got the same set of lawyers. It’s no extra

skin off our governor’s nose whether he is one of

these three defendants or not. Why does this matter

in the universe?

MR. PLADSON: Well, because under the Eleventh

Amendment jurisprudence, state officials have a

constitutional right to not be drug into federal court,

and federal court is court of limited jurisdiction, and

this – subject matter jurisdiction, Eleventh Amendment questions are supposed to be decided early on to

prevent state officials from being – sort of the flowery

language is ensnared in ongoing litigation and that

sort of thing, these concepts that have been

reiterated throughout the last century.

But that’s why. If he has not got a sufficient connection, and we don’t think he does, then he deserves

36a

his right to be out of the suit – the Office of the

Governor deserves to be out of the suit.

[24]

THE COURT: Is there nothing that he could say in

a speech that would put him in this suit?

MR. PLADSON: I think it’s – well –

THE COURT: I mean, “You’re going to jail” isn’t

enough?

MR. PLADSON: No, because, number one, it’s not

true, and number two, it doesn’t – it wasn’t directed

at any particular individual. It wasn’t directed at the

plaintiffs. The plaintiffs haven’t indicated that

they’re further – or provide any admissible evidence

that they’ve felt threatened or chilled in any manner,

and he doesn’t have a connection to the enforcement.

If he said, tomorrow morning I’m going to go out and

I’m going to direct Commissioner Blissenbach to start

investigating and I’m going to ask Governor Walz to

– Attorney General Ellison –I’ve got too many clients

here – Attorney General Ellison to reconsider his

statement that he has no intent to enforce it and

we’re going to push it, I think that’s a much closer

question. I think it’s much harder for us to say that

that involvement is not enough.

I still think there’s a question with whether

functionally he could, absent somebody else – like

without Commissioner Blissenbach, he can’t investigate the law. He can appoint the DLI commissioner,

just like the director in Lombardi.

[25]

THE COURT: And he can fire Commissioner

Blissenbach if he continues to emphasize this in his

own – forget politics – in his own set of policy

37a

priorities. If he continues to emphasize this and she

continues to say, I’m not going to inspect anyone, he

could fire her.

MR. PLADSON: Right.

THE COURT: Okay.

MR. PLADSON: And that’s not the facts that are

here, though. We don’t have any facts that he’s

threatened or that he’s directed –

THE COURT: Right, but he can.

MR. PLADSON: Yep.

THE COURT: He can. He could remove her. She is

appointed at his discretion.

MR. PLADSON: And I think, going back to

Lombardi, she’s the one that still has the – to the

extent that there is – and I know we disagreed about

whether she’s close enough, but assuming she is, she

is the one that has that right to do the investigation.

He still doesn’t. He gets to a point, but he still isn’t

the person.

THE COURT: And he gets to terminate.

MR. PLADSON: And he gets to terminate, yeah.

But then he’s got to appoint somebody else and got to

make sure that they’re going to go forward, and they

must actually threaten or be about to commence

proceedings under prong [26] two.

THE COURT: Okay. Thank you very much.

MR. PLADSON: Thank you.

All right. Mr. Revnew. Give me one second. Let me

get my ducks in a row here.

38a

Go ahead. Same lens. I still know all the stuff I

learned last time, and I guess our focus should be

more on what’s changed or what’s grown or what’s

evolved.

MR. REVNEW: Yeah. Good afternoon, Your Honor.

The Court is well aware of the new facts. And when

we first filed our complaint, we did not have the

existing statement by Governor Walz that you go to

jail if you violate this law.

THE COURT: Does it matter that that’s hogwash?

No disrespect to anyone with the term “hogwash,” but

nobody is going to jail, no matter who violates this

law.

MR. REVNEW: I think it does matter, Your Honor.

We are talking about a First Amendment issue here,

and it is an issue with regard to – if you point

discrimination and we have the chief executive of the

State of Minnesota saying that if you engage in this

conduct, you will go to jail, the average person in the

general public has no idea whether they’re going to

go to jail or not. That in and of itself is, in fact, a

threat. So I think it does matter that he made that

comment.

[27]

And I understand defendants’ counsel is claiming,

well, it’s a misstatement of what the law provides,

but it is still a threat. And it shows an intent to

enforce the law, which is what we’re looking at, and

an intent to enforce the law.

THE COURT: What about the admonitions including from Whole Woman’s Health but also I think

from Minnesota, RFL vs. – I guess it’s Freeman, that

it’s not enough just to have a theory of chilling, that

39a

Ex parte Young isn’t just about a theory of chilling

and that it has to be more in – as to any

constitutional right. And I think it’s Whole Woman’s

Health that lists the First Amendment but also other

constitutional amendments and says that as to any of

them, it’s not enough to just say, I’m nervous about

exercising my right because this might happen. That

isn’t enough. There has to be more.

MR. REVNEW: Well, I think there is more here.

And I go back to the sitting governor’s statement that

“You will be arrested.”

And it goes beyond that, Your Honor, because in

this instance, the governor knew that this case was

ongoing. The governor knew that the complaint – this

Court allowed us to amend the complaint to name

Governor Walz as a defendant to this case.

And in addition, Your Honor, the governor would

[28] know as to the nature of this case that he was

served, that there was a threat, that the plaintiffs

perceived that he was threatening enforcement of

this case.

Despite that, the governor does not sign a

declaration saying, I have no intent and will never

enforce this statute. He didn’t say that. In fact, he

said the opposite, where roughly a month ago, August

14th, he stood up in front of a group and he doubled

down. And it wasn’t that I’m going to disclaim that

folks would be arrested. He doubled down and said,

the last time I talked about captive audience

speeches, I was sued and it was the best thing that

ever happened to me and we’re going to continue to

ban those captive audience speeches.

THE COURT: Does it matter that he has actually

no authority to do any of that? That he doesn’t have

40a

the authority to send someone to jail? That he doesn’t

have the authority to ban it? That’s something the

legislature did. And that he’s not the actor who has

any enforcement authority?

MR. REVNEW: Well, I think that the question

assumes something that I disagree with, and that is I

do think Governor Walz does have an enforcement

mechanism here. And we can piece it all together,

Your Honor, with regard to, first, we can start with

the Minnesota Constitution that he has the authority

that he needs to ensure that the laws [29] are

faithfully executed. And I’ll concede that that in and

of itself is not going to be enough, Your Honor.

But two, under the Minnesota statutes, he has the

right to employ counsel to act in any action or

proceeding if the attorney general is in any way

adverse to the State.

So you have this dilemma where you have the

attorney general saying, I’m not going to enforce,

which is directly adverse to what Walz is saying, that

he wants to enforce it. And so I think you have to tie

in Minnesota Statute Section 806, tie that together

with his constitutional duties, but also tie in –

THE COURT: We have to be careful though, right,

sir, because – putting aside the speeches for just a

moment, your sewing together different important

statutory and constitutional provisions would apply

to any statute and would mean that any statute that

had a risk of First Amendment chilling would be

amenable to a pre-enforcement lawsuit, regardless of

expressed intent to enforce or bringing enforcement

actions, based instead on the strength of the ability to

enforce. And I think the law is pretty clear that

something more is required. Otherwise, Chief Justice

41a

Roberts wouldn’t have reminded us that chilling

alone isn’t enough.

So isn’t there some risk when you are pointing to

things in the statute that require enforcement that it

ends [30] up kind of vitiating the imminent threat

part of Ex parte Young?

MR. REVNEW: So, Your Honor, I think there’s one

important factor here. In all of the cases that have

been presented to the Court in the briefing, there is

not one case where a governor has made the statements that Governor Walz has made. Not one case.

Pretty egregious statements that he’s going to shut

down free speech, because what does the law provide?

The law provides that you can’t talk about political

speech or religious speech, and political speech is

very broadly defined.

And I hear what you’re saying, Your Honor, but in

the cases that are cited – I believe the defense

counsel cited the Eighth Circuit case in Church. And

as you dig into that particular case in Church, it goes

on and it cites another Eighth Circuit case, Citizens

for Equal Protection vs. Bruning, 455 F.3d. 859. And

the Eighth Circuit in that case specifically said that

general enforcement authority means that you have

some connection if that authority gives the governor

methods of enforcement. And what I submit to the

Court here is that the statutory framework, the

constitutional framework, gives Governor Walz the

method of enforcement.

THE COURT: But that’s not enough by itself,

right? You would agree that just because he has the

method, [31] if he’s not acting on it, using it, or

threatening it, the fact that he has the authority isn’t

enough. The fact that Attorney General Ellison has

42a

the authority, the fact that Commissioner Blissenbach has the authority, on paper that is not

enough. Something more has to be present.

MR. REVNEW: So, Your Honor, I agree with you

that – I mean, when we’re talking about Ex parte

Young, it’s a two-part analysis, right? Do you have

the ability to enforce? And are you, in fact,

threatening to enforce the law?

And I submit to the Court, as our briefs have laid

out and our complaint has laid out, that all three

defendants, Commissioner Blissenbach, Attorney

General Ellison, and Governor Walz, they all have

the ability to enforce, and there is a threat here.

And what I’d like to point out to the Court – because you asked me – at the last oral argument, you

had asked a question of me with regard to the

declarations that were submitted. And within the

declarations, the defendants state they have no

present intent to enforce. And I believe as part of our

discussion during the last oral argument, I believe

the Court noted that, well, if we looked at Care

Committee, in that case, the declarations actually had

a little bit more, which said, “I will not enforce.”

THE COURT: Right.

[32]

MR. REVNEW: And what I wanted to point out to

the Court is that if we look at the Freeman case, and

the Freeman case that was decided by the district

court, so 486 F.Supp.3d. 1300.

THE COURT: What’s the date on that?

MR. REVNEW: 2020.

43a

THE COURT: Okay. So this is before it went up to

the Eighth?

MR. REVNEW: It’s before it went up to the Eighth.

But what I wanted to point out to the Court is in that

case, the district court did look at the case that I

mentioned during the last oral argument, the UFCW

vs. International Beef Processors, 857 F.2d. 422, to

say, I can, as a district court, ignore these declarations that don’t contain the language. I have no

intention – or I will not enforce the statute ever.

THE COURT: But didn’t the Eighth Circuit

squarely disagree – I mean, if not squarely disagree,

the Eighth Circuit in the Minnesota RFL vs. Freeman

case specifically said that a disavowal of future

prosecution is not required. No present intention is

enough.

MR. REVNEW: But, Your Honor, I think that’s the

point I’m trying to make –

THE COURT: Okay.

MR. REVNEW: – which is there’s a factual [33]

distinction here, right? And Republican Farmer

Labor vs. Freeman, you didn’t have a governor who

not once but twice made statements that were

threatening in nature, and we do in this case.

And what I’m trying to point out to the Court is the

district court acknowledged that it can ignore

declarations based upon the factual layout of what

has happened in a particular case.

And in this case, what I want to point out to the

Court is not only did Governor Walz not submit a

declaration saying he has no present intent to enforce

and will never enforce, but the two other defendants

doubled down and submitted the same declaration, “I

44a

have no present intention to enforce.” It’s wishywashy. It’s squishy.

And remember, the general public, when we’re

talking about a free speech right, when a sitting

governor says you’re going to go to jail, and you have

the commissioner and the attorney general saying,

well, I have no present intent to enforce, that really

sends a bad message. In fact, I believe that the Court

can ignore the declarations that have been submitted

by the two other defendants, Attorney General

Ellison as well as Commissioner Blissenbach.

THE COURT: Okay. What else? Anything else you

want me to keep in mind? Answer one of – that same

[34] question that I subjected opposing counsel, Mr.

Pladson, to. What difference does it make, as a

practical matter – let’s hypothesize that I was going

to deny the motion to dismiss as to Commissioner

Blissenbach and Attorney General Ellison. What

difference does it make if Governor Walz is in the

case?

MR. REVNEW: Hypothetically speaking – I mean,

first, I believe that the governor should be in, so I’m

taking your hypothetical question that the Court

were to say, you know, it’s too tenuous as far as a

connection or there’s no threat whatsoever. Regardless, Your Honor, we end up getting to the merits

of the case, right, with regard to Nicole Blissenbach

as well as to Attorney General Ellison and the

constitutionality of the statute. So from a practical

standpoint, I don’t think it makes a difference.

THE COURT: Okay. Thank you. Anything else?

MR. REVNEW: No. Thank you, Your Honor.

45a

THE COURT: Okay. Mr. Pladson, you want the

last word?

MR. PLADSON: Sure. Just quickly, the fact that

Governor Walz didn’t submit a declaration I don’t

think matters. It’s the plaintiffs’ burden to prove

subject matter jurisdiction here, and they have not

submitted sufficient evidence.

Lastly, with respect to the RFL district court [35]

case from 2020, that was a 12(b)(6) motion, and

Judge Tostrud specifically ends his analysis on the

first prong of Ex parte Young. So he is – it doesn’t

matter for that stage, and we acknowledge that.

That’s why we brought the motion the way we did.

And then I would just caution any reliance on

Citizens vs. Bruning, the Eighth Circuit case. I think

if you follow the subsequent Eighth Circuit decisions,

they identify a very unique situation there with the

Nebraska Constitution, the gay marriage amendment

and enforcement structure and they’ve cabined that

sufficiently. So that’s all I have.

THE COURT: Thank you. I am going to rule from

the bench. And I am going to deny the motion to

dismiss as to all three of the defendants. I am going

to explain my ruling in detail.

I’m also denying the plaintiffs’ request that I sua

sponte grant summary judgment in their favor. That

is premature. I have no briefing before me on which I

could hang my hat, and we’ll talk about next steps at

the end of my explanation of my ruling.

I am doing this from the bench specifically because

I don’t want to continue to delay. In tongue-in-cheek

candor, I worry that the factual landscape will

continue to evolve and speeches will continue to be

46a

[36] made, and we don’t need to continually talk

about whether one or the other of these things has

tipped us over into the appropriate land where the

case can move forward.

So I appreciate the excellent briefing, and everybody is on the same page, more or less, about what

the standard is.

Eleventh Amendment immunity is really important. I don’t make light of it. It’s part of why I have

spent a lot of energy really thinking about these

issues. And I really resist any hint that chilling alone

is enough, and I resist any hint that if it involves the

First Amendment, it doesn’t matter if there’s a threat

to enforce. Nothing I’m saying should be taken to

suggest that I’m weakening or intending to weaken

these requirements.

But there is this expert – I’m sorry, there is this

exception under Ex parte Young, and I have to ask

two questions: Is the relief sought prospective? And if

there are officials with the ability to enforce that

statute that either have threatened or are about to

commence proceedings, then the exception to the

sovereign immunity kicks in.

I’ve read the cases carefully, frankly, over and over

again. I want to make a couple of preliminary

observations.

This is a strange procedural posture in the case law

because it is a factual attack. It is a motion to [37]

dismiss, but it isn’t a 12(b)(6), and that does make a

difference in these decisions. That is what explains

the difference between 281 Care Committee I and 281

Care Committee II. And I think it’s part of what

informed the Court in Whole Woman’s Health,

although I think we could have a three-day seminar

47a

on what the holdings of Whole Woman’s Health

actually are and how to apply them moving forward.

So I recognize this is a factual attack, and the

claims in the complaint aren’t entitled to deference

and I have to look at evidence. But I also recognize

that, you know, there are likely to be additional

developments of facts about who does what with

respect to the statute as the case moves forward.

So although I am not suggesting this is a preliminary facial ruling, I am observing that if the

landscape should change, if new things come up

about the applicability of the Ex parte Young

exception, those can be re-raised. This door is not

slammed. The Court has the obligation to keep its

jurisdiction in mind at every stage.

So the first question I have to answer is whether

there is a connection between the defendant and the

enforcement of the law. And the case law teaches

that it need not be an exclusive enforcement responsibility. It need not be the only official with a

connection to the [38] enforcement of the law. It may

not be the primary enforcement ability. In fact, if

anything, Whole Woman’s Health really brings that

home. But there must be some connection.

And so based on my review of the same cases I’m

going to repeat over and over, Minnesota RFL, Care

Committee I, Care Committee II, and Whole Woman’s

Health, I am going to determine that all three of

these defendants have an adequate connection to

enforcement or threatening enforcement of the law.

Let’s start with Governor Walz. Governor Walz can

appoint and can remove Commissioner Blissenbach.

That is a distinction from the Balogh case and I think

from the Church case as well. I apologize if I’m

48a

mixing up my citations. It is something that makes

this different from simply having appointing ability.

Governor Walz continues to make speeches celebrating the passage of the law but going a step

further. It isn’t just enough to say, this is an

accomplishment during my administration of which I

am very proud, we passed this law. It is going a step

further and saying, and if you violate this law, you

will go to jail.

It does seem that there is a disconnect between the

actual sanctions for alleged violations of the law and

what he made his speech about, but it nonetheless

evinces a [39] commitment to enforcing the law and a

threat of enforcing the law that is unique among all

the cases that I could find. I’ve never seen a case

where a defendant advocating for dismissal is simultaneously having the chief executive of the state

threatening enforcement of the law. Making your jobs

a little difficult, I realize, but it matters in this

context.

I disagree that this is meaningless politics. I think

it would be closer – and I’m not saying you meant it

was meaningless politics, but I disagree that there’s

an exception here for things that are said from the

campaign trail. This particular combination of

speeches is more than just celebrating the passage of

the law or the good idea behind the law. It is

threatening enforcement, and it is proudly mentioning that I’m going to keep talking about this even

though I am getting sued for it. It elevates the

robustness of the commitment.

I think it’s interesting that this case law doesn’t

always just talk about imminent enforcement, as in

we’ve gotten a call, they’ve executed a search war-

49a

rant, they’ve brought a complaint. It also talks about

threats, and this is as close to a threat in the case law

as I have seen.

So even though I think Governor Walz has a less

robust tie to the enforcement of the law, he has the

most [40] robust tie to threatening to enforce the law,

and he has a sufficient tie to enforcement of the law

to make him an appropriate defendant.

This is the closest call of the three defendants, and

I’m mindful of the wise council of defense counsel

that if you can’t think of how you would bind the

defendant with injunctive relief, that could be an

observation that he should not be an appropriate

defendant. But here, there is enough of a showing of

his connection to the enforcement and the threatening of the enforcement of the law, and he has demonstrated a unique interest in enforcing this law, such

that things that might otherwise be dormant on the

books, like the ability to fire the commissioner or the

ability to take other action in enforcement of the law,

are elevated in this case in a way they might not be.

I want to be very clear. I think that some of the

argument from the plaintiffs here go too far and

would make the governor or certain agents subject to

the Ex parte Young exception simply because you can

articulate an ability to enforce the law without

actually any threatened enforcement. And I’m not

suggesting that Governor Walz or any governor is

always the appropriate defendant in a case like this.

But here, those speeches, combined with the ability

to remove a commissioner who might not feel as

zealous about this law as he does, is enough to move

forward.

[41]

50a

With respect to Commissioner Blissenbach, I also

find that the commissioner has an adequate tie to

enforcement of the law. I think that this case law is

going to continue to evolve as we have more cases

that are designed for enforcement through a private

right of action. That makes the role of the state

executives different from simply being the person

who brings the lawsuit, brings the criminal complaint, brings the enforcement action. But here, the

statute is replete with examples of things that the

commissioner does in support of the enforcement of

this law, and there’s no suggestion that it has to be

simply a pure traditional prosecutorial authority to

count as sufficient tie to the enforcement of the law.

I’d point to Doe vs. DeWine and Jones vs. Jegley, J-EG-L-E-Y, as well as Whole Woman’s Health, in

support of this observation.

I’d also note that the statute itself uses the term

“enforcement,” enforcement of this chapter by the

department, and so that means something in the

statutory scheme about her connection to the law.

The referrals to the attorneys, I think I had a slight

misapprehension about how that worked, but

certainly the website that’s telling people to put up

posters that advertise to the employees what the

nature of their rights are under the law is an

additional fact.

And then with respect to Attorney General Ellison,

[42] I don’t think there’s any real dispute that he

actually has enforcement ability, so as to prong one,

that one is easier.

The second question then is, is there any threat of

enforcement? There has to be more than just the

ability to enforce. There has to be something else.

51a

I’m going to note that I don’t agree with either

side’s characterizations entirely of how to apply

Whole Woman’s Health. I feel like the defendants sort

of want me to kind of disregard what it suggests for

pre-enforcement litigation, and the plaintiffs want,

even though they disavow this in their briefing very

credibly, are really advocating for an application that

heavily reduces the requirement that they’re being

threatened or imminent enforcement. But I think

somewhere in the middle, Whole Woman’s Health

represents a shift in the application of Ex parte

Young, or certainly could do so.

I note that the Minnesota RFL case involves a

different statutory scheme and barely grapples with

Whole Woman’s Health and its impact on the

questions there. It mentions it twice, once in a

footnote and once in the body of the opinion, but it

doesn’t do the wrestling with the case that I think

we’ve done here, and perhaps that’s because it was so

much more recent at the time.

The Chief Justice in Whole Woman’s Health says

that eight justices agree that Ex parte Young applies

there [43] because there exists state executive

officials who retain authority to enforce the law.

We have much more than that here. We have state

executive officials who retain the authority to enforce

the law in some way, and we have steps taken

affirmatively toward executing that authority, including Commissioner Blissenbach’s being instructed

to put up the website and advertise for the posters,

but also including the chief executives repeatedly

talking about this law and threatening explicitly to

enforce it.

52a

I disagree that enforcement has as narrow a

meaning as the defendants suggest, given the private

right of action nature of this scheme, and Commissioner Blissenbach is already taking steps to do

their part to enforce the scheme.

I also note that threatening and talking about

enforcement goes an extra step, which is encouraging

individual citizens in this private right of action to

take their steps toward enforcing the scheme. That’s

where Whole Woman’s Health and this case have

more in common than either the RFL case or the

Care Committee 281 case. Although one of those does

have the capacity for private right of action, it also

has direct state enforcement possibility. This case is

different. This statute is designed differently. I don’t

know vet if I’m convinced that this statute was [44]

designed in this way specifically to avoid preenforcement litigation or because, as you say, thinking of a more useful allocation of resources, but I

don’t know that it matters at this stage.

I’ll note that Attorney General Ellison has taken

the least action but has the strongest connection with

the enforcement of this statute. And, therefore, with

the imminent threats related to enforcement, I find

that there is enough for this litigation to proceed.

The third observation I want to make is that this is

a First Amendment case. And in Jones vs. Jegley,

which was an Eighth Circuit 2020 case, it rejected

the argument that a plaintiff must first get prosecuted before challenging a First Amendment

statute. And here, getting prosecuted is getting sued,

given the statutory design, and the concern there was

chilling speech. I don’t agree that anytime a law has

the effect of chilling speech, the Eleventh Amendment immunity issues go out the window. That can’t

53a

be. Otherwise, we could never see the application of

this in the context of the First Amendment, and we

see this analysis over and over again in First

Amendment cases. But here, there is something

unique about public threats to enforce this law that

has an extra concern for chilling.

I’m going to quote NRA vs. Vullo. “Ultimately,

Bantam Books stands for the principle that a

government [45] official cannot do indirectly what she

is barred from doing directly. A government official

cannot coerce a private party to punish or suppress

disfavored speech on her behalf.” It’s not a perfect

analogy for a lot of reasons, but it is instructive to me

about the way the fact that we risk chilled speech

here plays into the Ex parte Young analysis.

So I think I’ve explained my reasoning. I know you

don’t agree with it, Mr. Pladson. Is there anything

else that needs explanation with respect to the

motion to dismiss?

MR. PLADSON: I don’t think so. I was going to

raise a more pragmatic question about current

events.

THE COURT: Okay. So lets get to that in just a

second.

Any further explanation needed with respect to my

ruling on the motion to dismiss?

MR. REVNEW: No, Your Honor.

THE COURT: Okay. I am not going to write an

order. I’m buried in orders right now. I’ll capture the

fact of this in the minutes, but that’s part of why I

really prepared my thoughts in advance, so that you

all could have a ruling right away.

54a

Let’s talk about next steps. So why don’t you go

ahead. Come on up to the podium and tell me what

your [46] concerns are.

MR. PLADSON: One of my clients happens to be

running for Vice President of the United States.

THE COURT: I’ve noticed.

MR. PLADSON: So should a month and a half from

now, eight weeks, whatever it is, should that election

happen and he will take office in January, now I

think – you know, as you mentioned before, the facts

on the ground are very much shifting and changing

and he, if that happens, would not be the governor

any longer. We would have a different governor, and

my understanding would be that the threats no

longer apply because they’re not articulated by the

same person.

I just wanted to raise that as a point of what is our

– in order to move forward –

THE COURT: So you’re saying could you renew the

motion to dismiss once you have a different governor

who might not be making speeches?

MR. PLADSON: Yes, and I probably would. But I

wanted to see pragmatically if – were we to agree to a

stay just until November 6th or the day after or –

well, hopefully we know, but just which way we’re

going.

THE COURT: You should probably stop talking

now. No, I’m just kidding.

Okay. Let me ask you a couple questions that [47]

might help with that set of questions.

MR. PLADSON: Sure.

55a

THE COURT: Do you believe that discovery is

required in this case?

MR. PLADSON: I do.

THE COURT: Okay. Judge Wright is the magistrate judge in this case, and it is my intention to

send the parties to Judge Wright to talk about what

the next steps are. What discovery is needed, what

schedule is appropriate, and when and how to tee

this up for ultimate ruling. I know that plaintiffs are

eager for summary judgment. I’m going to allow

Judge Wright to grapple with those questions in the

first instance.

I think as a practical matter, you know, November

6th is right around the corner, and so depending on

where Judge Wright goes with those considerations,

we may be worrying about a tempest in a teapot

prematurely.

MR. PLADSON: That’s fine. I just kind of wanted

to flag that.

The other piece, too, is that my understanding is

that my clients have an immediate right to appeal

the sovereign immunity denial. I haven’t talked to

them yet. I will be following up. But that may – also

just for pragmatic reasons, and I will let them know

if we end up going that route because it’s an

immunity question and –

[48]

THE COURT: Yeah, I kind of lost sight of that.

Okay. Well, I hope I explained myself well enough for

appeal purposes.

MR. PLADSON: We’ll be getting a transcript. I’ve

got to get a contract in place first because it’s

government. Anyway, so I wanted to flag that as well.

56a

THE COURT: Okay. And can you give me just a

thumbnail sketch – I’m trying to resist my old

magistrate judge inclinations and not wonder about

the discovery – but what kind of discovery do you

think is necessary?

MR. PLADSON: I think we need to know what the

threat is, how do they understand the law, and why

do they think that there’s chill here? It’s a retaliation

statute. If you don’t fire somebody for attending, then

you have no issue. And it doesn’t prohibit speech. We

don’t have to get into the dispute or the merits but –

THE COURT: But that’s merits-related discovery.

MR. PLADSON: Yes. THE COURT: Okay. MR.

PLADSON: So I think there’s that. I think we may

look at retaining an expert or two.

THE COURT: Great. Thank you.

Mr. Revnew?

MR. REVNEW: Thank you, Your Honor. No

surprise, we do not want any delay here. We do not

believe discovery [49] is necessary. Certainly if the

defendants have an appeal right, they have the

appeal right. They also, if they don’t appeal, they

have the duty to answer the complaint, I believe it’s

within 14 days at this point. I just want to make that

clear for purposes of the record.

THE COURT: Okay. So you disagree that discovery

is necessary. If they choose to exercise their right to

appeal, they do so. You would presumably bring up

your thoughts about whether any discovery is needed

at that pretrial conference before Judge Wright?

MR. REVNEW: Yes, Your Honor. And I know

you’re delegating it to the magistrate judge, but I

would be remiss if I didn’t raise that we do not

57a

believe that discovery is necessary. We believe this is

a pure legal issue, and we believe the Court should

decide that pure legal issue as expeditiously as

possible because we are talking about a First

Amendment issue.

THE COURT: Great. Thank you.

MR. REVNEW: Thank you.

THE COURT: All right. So I will wait with bated

breath to see if there’s going to be an appeal or not.

I’m going to connect with Judge Wright and let her

know this will be coming her way and that the

plaintiffs are looking for some speedy action. And

then at her discretion in terms of this schedule – and

I’m sure she’ll be [50] consulting with me about – you

know, my general practice, is not to allow early

summary judgment. My general practice, though, is

to encourage people to expedite discovery to facilitate

early summary judgment where that’s appropriate,

and I’ll let her sort through those things with counsel

for both sides.

Thank you for an excellent argument, again, and

for answering all my questions, again.

In terms of your question about what happens if

your client changes, I think we cross that bridge

when we come to it. So if you file a motion, we’ll see

what happens with it, and who knows where the case

will be at that point.

Thank you.

(Court adjourned at 3:02 p.m.)

58a

I, Paula K. Richter, certify that the foregoing is a

correct transcript from the record of proceedings in

the above-entitled matter.

Certified by:

s/ Paula K. Richter_____________

Paula K. Richter, RMR-CRR-CRC

59a

APPENDIX D

Minnesota Statutes

Chapter 181 – Employment

Section 181.531 – Employer-sponsored meetings or

communication

Subdivision 1. Prohibition. An employer or the

employer’s agent, representative, or designee must

not discharge, discipline, or otherwise penalize or

threaten to discharge, discipline, or otherwise

penalize or take any adverse employment action

against an employee:

(1) because the employee declines to attend or

participate in an employer-sponsored meeting or

declines to receive or listen to communications from

the employer or the agent, representative, or designee of the employer if the meeting or communication is to communicate the opinion of the

employer about religious or political matters;

(2) as a means of inducing an employee to attend

or participate in meetings or receive or listen to

communications described in clause (1); or

(3) because the employee, or a person acting on

behalf of the employee, makes a good-faith report,

orally or in writing, of a violation or a suspected

violation of this section.

Subd. 2. Remedies. An aggrieved employee may bring

a civil action to enforce this section no later than 90

days after the date of the alleged violation in the

district court where the violation is alleged to have

occurred or where the principal office of the employer

is located. The court may award a prevailing employee all appropriate relief, including injunctive

relief, reinstatement to the employee’s former pos-

60a

ition or an equivalent position, back pay and

reestablishment of any employee benefits, including

seniority, to which the employee would otherwise

have been eligible if the violation had not occurred

and any other appropriate relief as deemed necessary

by the court to make the employee whole. The court

shall award a prevailing employee reasonable attorney fees and costs.

Subd. 3. Notice. (a) The commissioner shall develop

an educational poster providing notice of employee

rights provided under this section. The notice shall be

available in English and the five most common

languages spoken in Minnesota.

(b) An employer subject to this section shall post

and keep posted the notice of employee rights created

pursuant to this subdivision in a place where

employee notices are customarily located within the

workplace.

Subd. 4. Scope. This section does not: (1) prohibit

communications of information that the employer is

required by law to communicate, but only to the

extent of the lawful requirement; (2) limit the rights

of an employer or its agent, representative, or

designee to conduct meetings involving religious or

political matters so long as attendance is wholly

voluntary or to engage in communications so long as

receipt or listening is wholly voluntary; or (3) limit

the rights of an employer or its agent, representative,

or designee from communicating to its employees any

information, or requiring employee attendance at

meetings and other events, that is necessary for the

employees to perform their lawfully required job

duties.

Subd. 5. Definitions. For the purposes of this section:

61a

(1) “political matters” means matters relating to

elections for political office, political parties,

proposals to change legislation, proposals to change

regulations, proposals to change public policy, and

the decision to join or support any political party or

political, civic, community, fraternal, or labor

organization; and

(2) “religious matters” means matters relating to

religious belief, affiliation, and practice and the

decision to join or support any religious organization

or association.

62a

APPENDIX E

United States Constitution

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to

assemble, and to petition the Government for a

redress of grievances.

63a

APPENDIX F

United States Code

Title 29 – Labor

Chapter 7 – Labor-Management Relations

Subchapter II – National Labor Relations

§ 158. Unfair Labor Practices.

(a) Unfair labor practices by employer.

It shall be an unfair labor practice for an employer –

(1) to interfere with, restrain, or coerce employees

in the exercise of the rights guaranteed in section 157

of this title;

(2) to dominate or int

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