Lawyer Erick Kaardal questions why some businesses were deemed essential and other not and argues those deemed inessential have had their constitutional rights violated. (Photo by Cindy Ord/Getty Images)
Libertarian lawyer Erick Kaardal has filed a lawsuit on behalf of a coalition of small businesses challenging Gov. Tim Walz’s executive order that declared some businesses essential and others not.
The policy is a cornerstone of Walz’s strategy to combat COVID-19 by keeping Minnesotans out of places that are most likely to serve as disease incubators; crowded bars, for instance. But the small business group says Walz’s order is unconstitutional.
The legal salvo is the latest sign of increasing political pressure on Walz to reverse his orders, which are now scheduled to expire May 18. House Republicans have threatened to hold up a major package of infrastructure spending unless Walz negotiates an end to the peacetime emergency measures.
Kaardal is well known in Minnesota legal and political circles, cheered by conservatives for recent fights opposing the renaming of Bde Maka Ska and the display of a rainbow flag in a public school. He said he’s not opposed to the stay-at-home order as a whole: “That’s not a decision for a lawyer to make,” he told the Reformer.
Rather, Kaardal argues that the administration’s division of businesses into “essential,” “non-essential,” and “non-critical exemptions” is arbitrary and violates the equal protection clause of the 14th amendment to the U.S. Constitution.
“There is no scientific standard for deciding what is allowed to stay open,” Kaardal says. “Target is allowed to stay open, but small businesses selling the same products as Target are not.”
No retailer is part of the case, but Kaardal says his team has heard from several and are evaluating whether any are appropriate to include.
Kaardal shrugs off his history of litigating conservative causes, which has included frequent collaboration with the conservative legal activist organization Minnesota Voters Alliance. In one case, he sued the secretary of state for access to voter information to investigate voter fraud, which has been a favorite issue of President Donald Trump. In another — one of his two U.S. Supreme Court victories — he challenged a ban on people wearing political paraphernalia at polling places.
His focus, he says, is government overreach, not conservative causes. He has worked with parents to challenge the state’s child protective system, alleging bias against Indigenous and Black parents. “Is that a conservative cause or a liberal cause?” he asks, “I don’t know.”
Conservative activist and climate change denier Dan McGrath convened the Free Minnesota Coalition, which organized the suit. He has collaborated with Kaardal several times in his capacity as the communications director for the Minnesota Voters Alliance.
McGrath said in an email that the coalition exists “solely to preserve and protect the rights of the people of Minnesota during this pandemic.” One of its members, #ReOpenMN, organizes civil disobedience against the stay-at-home order.
Appearing on a conservative podcast shortly before the suit was filed, McGrath said the case would focus on small businesses. Cases relating to freedom of speech would be referred to the Upper Midwest Law Center (UMLC.)
According to their website, UMLC’s mission is to “to initiate pro-freedom litigation.” They are currently soliciting stories from small businesses and individuals whose “exercise of speech, assembly, governmental petition or religious freedoms” have been infringed by the stay-at-home order
UMLC, which is closely connected to the right-wing Center of the American Experiment, hasn’t always lived up to its pro-freedom brand. The group mulled litigation, for instance, against public officials for allowing protests of the October 2019 Trump rally in Minneapolis, though legal action never materialized.
Doug Seaton, founder and president of UMLC, said in an email that their board of directors was “meeting remotely soon to decide whether to proceed with a case challenging the closure orders.” If they decide to go ahead, they could announce a case this week.
The current situation is unprecedented, and Kaardal has decades of experience suing the government, both of which make the outcome uncertain.
Peter Wattson is a retired public policy lawyer, formerly legal counsel to the Minnesota Senate and briefly counsel to governor Mark Dayton. Wattson is critical of the movement to end the stay-at-home order, but said he trusts that Kaardal — with whom he has worked — is acting in good faith.
Wattson said he is skeptical of Kaardal’s chances of success, but added that Walz’ executive orders are far from airtight.
Not since the 1918 Spanish Flu pandemic has government instituted such drastic restrictions on people’s freedom in an emergency, and with little federal guidance. “So to find that there might be an error — a bad way of phrasing or a not well justified limitation — that’s in part of one of the governor’s orders? I can sure see that happening,” Wattson said.
“I wrote a lot of laws, and I made a lot of mistakes,” he added.
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