Why is Lori Swanson neglecting the tough parts of her job?

Last month, Minnesota had its day before the U.S. Supreme Court, which heard a constitutional challenge to Minnesota’s implied consent law, making it a crime for someone arrested for impaired driving to refuse a breath test. But Minnesota’s chief lawyer, Attorney General Lori Swanson, was conspicuously missing.

Instead, the job of defending this Minnesota law was left entirely to the Dakota County Attorney’s Office. An assistant Dakota County attorney argued the case, and the briefs for the state of Minnesota was signed only by the Dakota County Attorney’s Office. The attorneys general of eighteen other states filed an amicus brief in support of Minnesota (and North Dakota in two related cases). Yet Minnesota’s Attorney General was absent, with no public explanation.

This case, Bernard vs. Minnesota, is just one in a string of recent cases raising concerning questions about whether our Attorney General is really doing her job. (The pattern is underreported, but not new, as I have noted her failure in the past to protect Minnesotans against federal overreach.)

The Attorney General’s office is adept at garnering headlines by issuing press releases announcing consumer fraud investigations against unsympathetic businesses. But when a case appears legally difficult or politically treacherous, Swanson has repeatedly chosen avoidance over duty. This places an unfair burden on county attorneys, who are often left to defend state laws on their own. The same pattern was present in a recent case involving Auditor Rebecca Otto’s challenge to state legislation which gives more counties the option to hire private auditors (overseen by the state auditor) instead of having their audits done entirely by the state auditor. When Otto was first threatening a lawsuit, the AG’s spokesman said, correctly, that “the attorney general defends state statutes.”

But when Otto filed her lawsuit, Swanson ducked. She made a deal with Otto’s lawyers, dismissing the state from the lawsuit on the exact same day the complaint was filed, so her office would no longer be involved. Instead of doing her job, she left the defense of this state law entirely to three county attorneys.

Swanson repeatedly has abandoned her job to defend state statutes. In an earlier federal case challenging a Minnesota law prohibiting certain false statements during elections, the Attorney General argued that she was not a proper party, and left the defense of the state law entirely to two county attorneys. After the U.S. Court of Appeals for the Eighth Circuit struck down the law, the counties sought to appeal that ruling to the Supreme Court, again without any help from the Attorney General beyond a perfunctory letter stating the Attorney General’s support.

(I was personally involved in a similar case, when I brought an administrative complaint against an activist who created a website to mislead voters that certain judicial candidates were endorsed by the Republican Party of Minnesota. After he was fined, he challenged Minnesota’s law prohibiting false claims of endorsement on constitutional grounds. Instead of defending that state law, the Attorney General’s office again punted, leaving it to me (with pro bono counsel) to successfully defend the law before the Minnesota Court of Appeals and the U.S. Supreme Court.)

Swanson has also neglected another important aspect of her job: assisting county attorneys with tough criminal cases. Take the case of Byron Smith, for example. After Smith lured two teenage burglars into his house and gunned them down, shooting them multiple times, the Morrison County Attorney’s Office asked the Attorney General for help prosecuting the case. After some initial press coverage painted Smith as a gun-rights hero exercising his right to self defense, Swanson refused Morrison County’s request for help.

Washington County Attorney Pete Orput called this a “cynical political” decision. Orput should know. He spent years in the Attorney General’s office, handling criminal cases like this one, when a smaller county needed help from the AG. When someone like Morrison County came calling, he thought it was his job to help. And when Swanson refused to help, Orput took on the Smith case, securing two first degree murder convictions.

Time and again, when the going is tough and there is no glowing headline ripe for the picking, Lori Swanson has left important parts of her job undone, leaving county attorneys and others to step into the breach. As Minnesotans, we deserve better from our Attorney General.