Judge Matthew Frank Finds Key Provisions of the Minnesota African American Family Preservation Act Unconstitutional On Public Parent Attorney’s Motion

Carman Leone of Hennepin County Adult Representation Services (like a Public Defender for parents in child protection cases) moved the Court to find the rollout of the Minnesota African American Family Preservation Act unconstitutional both facially and as applied. 

The Act is part of a decade long, and in a larger sense generations long, struggle to correct the significant racial disparities in Minnesota Child Protection. An ABA study found Hennepin County to be in the bottom 10% nationally for anti-Black racial disparity in child protection. Minnesota as a state has been deadbeat last regarding Native families for something like 20 years. An organization called Village Arms pushed for the bill starting in the late teens. When George Floyd was murdered it shone a spotlight on the issue. The NAACP took up the issue at weekly marches from the Clayton-Jackson-McGhie Lynching Memorial down to the State and Federal Courthouse in Duluth, as well as similar events across the state. Community organizations of all kinds joined the fight for the Act. Then candidate Mary Moriarty was the keynote speaker at a COVID era zoom town hall on the issue. She promised to support and implement the Act. Eventually, the Act was passed.

In summary, the Act requires significant reporting and statistical analysis. That analysis is then used to inform which groups are suffering from systemic bias. The law then requires a higher level of effort to remedy the bias those groups are suffering from. It is a bit more complicated than that, but that is the gist of it.

The law permitted the state to roll out the Act starting in Hennepin and Ramsey Counties. Initially the Act was to apply to 30% of cases that meet the criteria, meaning primarily African American, Non-ICWA Native American, and multi-race families. That 30% was going to be increased by 10% every quarter until it reached 100% in 2027. The Act was set to rollout to the rest of the state at that time.

Carman Leone, of Hennepin County Adult Representation Services moved the Court arguing that it was unfair for one of his clients to not be randomly selected for the phase-in. Carman Leone attempted to argue that the phase-in itself violates equal protection, but the act itself does not. However, that argument is challenging to make, because much of the same arguments Carman Leone made to attack the phase-in schedule are also arguments against the Act itself. 

Critically, Carman Leone argued that the phase-in was unconstitutional not just as applied but also on its face. That means that Carman Leone and ARS were asking the Court to not just fashion a rule for his client, but for all parents in Minnesota. Carman Leone filed the required notice to Attorney General Keith Ellison, who chose not to participate in the case. To my knowledge, and I've confirmed with the committee chair, the NAACP was not given courtesy notification of the motion. I don't believe Village Arms, Mitchell Hamline, CAIR, or any of us who marched, supported, and advocated for the Act were notified before the motion was brought. Of the six attorneys and judge involved: three for ARS, two for Hennepin County, and one for the Guardian ad litem, all seven appear to be White.

Hans Larson, of the Hennepin County Attorney's Office, argued that the Act and phase-in were constitutional. Hans Larson argued that because the participants in the phase-in were randomly chosen, because the act applies to all disproportionally impacted individuals across many races and ethnicities, and because the rollout was meant to ensure that the act was implemented in an orderly and effective manner that both the act and the rollout are constitutional. In short, Mary Moriarty kept her campaign promises and tried to save Hennepin County Adult Representation Services and Carman Leone from their own argument.

Judge Matthew Frank agreed with Carman Leone's argument that the act was unconstitutional on its face. The Court extended the argument that the phase-in was unconstitutional to an analysis that all the operative portions of the act were unconstitutional. Since no party moved for other portions to be struck, Judge Matthew Frank did not order the entire act stricken. However, Judge Matthew Frank telegraphed that if some party does move for more sections of the Act to be struck that his same findings would likely apply to basically all the operative sections of the act leaving an empty husk of reporting and statistical analysis provisions. Bottom line, the result of Judge Matthew Frank's order is the act no longer applies to anyone until at least 2027. Before it applies, someone will likely move for the whole act to be stricken, which Judge Matthew Frank telegraphed he would likely order.

There is no word yet on if any party will appeal.

Briefs, memorandums, and attachments are included at this link.

-- Scotty Ducharme

#HumanMade