Labor & Employment Law Daily Wrap Up, PROCEDURE—8th Cir.: Walz, other Minnesota officials immune from suit challenging state’s anti-captive audience law, (Sep 4, 2025)

By Jason Albright, J.D.

The district court had found that Governor Tim Walz’s speeches concerning the enactment and his removal authority vis-a-vis subordinate state officials were enough to make him an Ex parte Young defendant.

Governor Tim Walz and two other Minnesota officials are entitled to dismissal—based on sovereign immunity—of a lawsuit brought by three employer associations challenging Minnesota’s “anti-captive audience law,” the Eighth Circuit held. Applying Ex parte Young, the appeals court found that the governor’s power to “remove a commissioner who might not feel as zealous about this law” does not have sufficient connection with enforcement of the Act, and that the state labor commissioner’s duties under the Act are merely ministerial. Finally, the claim against the state attorney general, who attested to having “no present intention to commence” enforcement of the Act, were dismissed without prejudice. Judge Loken dissented (Minnesota Chapter of Associated Builders and Contractors v. Ellison, No. 24-3116 (8th Cir. Sept. 3, 2025)).

Employer-Sponsored Meetings or Communication Act. 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 “Employer-Sponsored Meetings or Communication Act.”

Anti-captive audience law. The Act is an anti-captive audience law that 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],” requires employers to post a “notice of employee rights” under the Act “within the workplace,” and was amended to require the state labor commissioner to “develop an educational poster providing notice of employees’ rights provided.”

Officials’ declarations. Immediately after MNABC filed its lawsuit, the state attorney general and the labor 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. And after it was amended, the labor commissioner reaffirmed her previous declaration disavowing any intentions, past or present, to enforce the Act.

Statements of Governor Walz. Minnesota Governor Tim Walz was not an original defendant, but after the new law’s 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 its complaint, adding the governor as a defendant.

Walz’s statements during 2024 campaign. Thereafter, while running for Vice President, Governor Walz 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, the court noted, agrees that the governor misstated the law on that point.

Sovereign immunity defense. The state defendants asserted sovereign immunity and moved to dismiss the complaint, factually attacking the court’s subject matter jurisdiction. The governor and labor commissioner argued they did not have “a sufficient connection to the Act’s enforcement,” and the attorney general and labor commissioner declared they did not have “present intent” to enforce the Act.

Interlocutory appeal. The district court denied the motion to dismiss, and the defendants brought an interlocutory appeal before the Eighth Circuit.

Ex parte Young. The appeals court initially observed that, though states are generally immune from suit under the Eleventh Amendment and the doctrine of sovereign immunity, 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.” Ex parte Young, 209 U.S. 123, 159—60 (1908). To be a proper Ex parte Young defendant, the state official must have “some connection with the enforcement” of the challenged law and “threaten and [be] about to commence proceedings.”

Governor Walz. Beginning with the governor, the Eighth Circuit found that Walz’s power to “remove a commissioner who might not feel as zealous about this law” does not have sufficient connection with enforcement of the Act to qualify under the Ex parte Young exception. “Even if the Governor were to remove the Commissioner for her lack of zeal to enforce the Act,” the appeals court reasoned, “her successor would ‘automatically assume [her] role in the litigation’ and would be bound by any ruling enjoining the Commissioner from enforcing the Act.” Appointing or removing a commissioner was thus “too far removed” from enforcement to bring Walz within the Ex parte Young exception.

The labor commissioner. Turning to the labor commissioner, the Eighth Circuit found that “Minnesota correctly argues that the Commissioner’s duties under the Act are ministerial and not enforcement.” Though the Act empowers “[a]n aggrieved employee” to “bring a civil action to enforce this section,” the labor commissioner is not similarly empowered. Her only duty, observed the appeals court, is to “develop an educational poster providing notice of employees’ rights provided under this section.”

Attorney general. Finally, though there was no dispute that the state attorney general has power to enforce the Act, the attorney general attested to having “no present intention to commence” enforcement, and Ex parte Young requires the officer to “threaten and [be] about to commence proceedings.” The attorney general thus also did not presently appear to fall into the narrow Ex parte Young exception, but the court dismissed the claim against him without prejudice.

Dissent. In his dissent, Judge Loken argued that the “limited record on defendants’ motion to dismiss fully supports the district court’s analysis and conclusions” as to the governor’s threat to enforce the law, the labor commissioner’s connection to enforcing or threatening to enforce it, and the attorney general’s actual enforcement ability. Whether the standard of review is de novo or abuse of discretion, he said, he would affirm based on the reasons stated by the district court.

The case is No. 24-3116.

Attorneys: Maurice Baskin (Littler Mendelson) for Minnesota Chapter of Associated Builders and Contractors, National Federation of Independent Business, Inc., and Laketown Electric Corp. Benjamin William Harringa, Office of the Attorney General, for Keith M. Ellison, Nicole Blissenbach, and Timothy Walz.

Companies: Minnesota Chapter of Associated Builders and Contractors; National Federation of Independent Business, Inc.; Laketown Electric Corp.

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