11 May 2022
Republicans who control the Minnesota Senate have focused heavily this year on “tough on crime” legislation, aiming to respond to a wave of violent crime and the defund-the-police movement in the Twin Cities.
So one might think a small proposal from the state attorney general to bolster a team helping county attorneys prosecute complex criminal cases might be of interest. But so far the Senate GOP has opposed a $1.82 million plan from Democratic AG Keith Ellison to hire seven prosecutors that will primarily help counties in Greater Minnesota.
Ellison is taking the omission personally. He believes it has little to do with the team of prosecutors or their stated goal, but rather is “98 percent” a GOP effort to stick it to the progressive AG, who they have been reluctant to fund — and who is expected to face a tough re-election campaign this fall.
“Because it’s completely irrational and unconnected to any rational policy goal,” Ellison said when asked why he believes the lack of support is because of his politics. “When you strip away any rational policy goal, what are you left with?”
Ellison has been clashing with state Sen. Mary Kiffmeyer — a Big Lake Republican who chairs a committee with oversight of his office — over several issues, such as Ellison’s decision to sue several businesses that violated COVID restrictions put in place by Gov. Tim Walz during the pandemic.
The latest impasse has become a high-profile one at the Capitol, where lawmakers are in their last two weeks of session hashing out how to use a projected $9.25 billion surplus.
On Thursday, Kiffmeyer said in a statement that Ellison had “plenty of time and resources to shut down businesses last year,” and that “I think he has enough time and resources to prosecute crime now.”
What Ellison wants
Ellison this year wants a $2.3 million increase for his office’s budget, which totals roughly $26.2 million in the 2023 fiscal year. The money would pay for raises meant to retain workers and add non-legal staff in IT, human resources, communications or outreach positions.
Separately, the AG asked for seven attorneys, plus two legal assistants, to help county attorneys prosecute violent or complicated crimes like sex trafficking, white-collar fraud, or other legal work like habeas corpus petitions.
Ellison said the extra staff to help county attorneys has been a priority since he took office. Beyond that, he has been advocating for increases to a small budget that has less money in 2023 than the $26.8 million the Legislature allocated in 2002. (81 percent of the AG’s budget went to salary and benefits in the 2021 fiscal year.)
The AG’s office has brought in hundreds of millions over the last two decades through litigation like the landmark 1998 tobacco lawsuit, and, more recently, $300 million in settlements with opioid makers and distributors under Ellison. But cash from that legal work does not come back to the attorney general’s office, and Ellison says the settlements are evidence that the AG’s office isn’t getting its due in the budget.
As for the team of prosecutors, Molly Hicken, the top attorney for northeast Minnesota’s Cook County, told the House’s Public Safety and Criminal Justice Reform Finance and Policy Committee in March that the trade association representing her colleagues is “united in the great need for assistance from the AG’s office.”
“Especially for county attorney offices in rural and outstate Minnesota like mine,” Hicken said.
Hicken said half of Minnesota counties have just three or fewer attorneys in the county prosecutor’s office and 24 — including Cook — have two or fewer. Those attorneys have a huge portfolio, from prosecution to work as general counsel for the county, handling civil cases and even sitting in on county board meetings.
And while those prosecutors in smaller counties have trial experience, they can’t specialize in “the most serious of cases,” Hicken said, like murder, human trafficking, or certain white-collar crime, because they don’t come up as frequently. Those big cases can also eat up all of an office’s resources, leaving nothing left for remaining legal work.
In such situations, county attorneys often turn to the AG’s office, which has three attorneys in the unit helping counties on complex cases. When Ellison took over, they had just one.
Kathryn Lorsbach, the prosecutor in Clearwater County, told the House committee that her office of two attorneys and two support staff had to deal with two murder cases, a school resource officer sexually abusing children and the Line 3 oil pipeline protests between 2020 and 2021. That was at the same time as the county was dealing with regular caseloads and stressed by the COVID-19 pandemic.
So Lorsbach asked the AG’s office for help. “The resources, support and knowledge base that they brought to these high-stakes cases resulted in successful prosecutions,” she said.
Without that help, it would be hard to achieve parity with metro counties, Lorsbach said. And while Hicken said prosecutors would not abandon their duty to prosecute tough cases without help from the AG, “all of the other legal work that this county requires would have to fall by the wayside because something has to give.”
Prosecutors from Freeborn, Todd and Cottonwood counties also wrote letters of support for the AG’s proposal. Last week, Ellison came to the Capitol with the prosecutors for Hennepin, Ramsey and Anoka counties to campaign for the plan.
In an emotional moment during the House hearing, state Rep. Marion O’Neill, R-Maple Lake, thanked Lorsbach for successfully prosecuting Christopher Colgrove, who stabbed his neighbor Dawn Swenson to death while on meth and fleeing police. O’Neill said she went to school with Swenson and attended her funeral.
Lorsbach responded in part by saying: “I just would like everyone to consider that we were able to obtain that result with the help of the attorney general’s office.”
Why Kiffmeyer is saying no
The House, which has a DFL majority, included the $1.82 million plan within a larger public safety proposal and would fund the $2.3 million for other staff and compensation, too. But the Senate has not supported either proposal.
Kiffmeyer said Tuesday that the Legislature did boost the AG’s budget significantly in recent years, saying the funding was generous enough to draw questions from her GOP colleagues. That budget was about $22 million between 2014 to 2019 and jumped several years in a row to a high of $28.7 million in 2022.
Kiffmeyer said if Ellison wants the prosecutors to be a priority, he can shift money and personnel within the office. And she jabbed at Ellison for suing 13 businesses or event organizers over violating COVID-19 restrictions set by Walz during the pandemic to limit spread of the disease before vaccines were widely available.
“The attorney general seemed to have plenty of time and resources to go out in rural Minnesota and shut businesses down which I don’t see in his jurisdiction necessarily,” Kiffmeyer said. “But he went out and used resources to do it. So I said, ‘Ok, this year you’ve got time and resources, use that for criminal prosecution.’”
Ellison, whose mother died of COVID-19, said the pandemic regulations were an effort to save lives and that he had to prosecute those breaking the law. It would have been unfair to let some businesses flout regulations while others were adhering to them, he said.
Rather than fund the team of prosecutors at the AG’s office, Kiffmeyer instead pushed $100,000 into more training for prosecutors. That was four times the request of the Minnesota County Attorneys Association, which had asked for $25,000. The association has seen lots of turnover, so developing expertise and training the attorneys who train everyone else has been a priority.
Kiffmeyer said through training counties can help themselves, and they can rely on help from other counties. That avoids the “attorney general sucking up all this stuff into his office,” and is cheaper, she said. (Though, Robert Small, executive director for the County Attorneys Association, said it’s a “resource issue for our Greater Minnesota county attorneys” and increased AG staff would benefit them.)
The rift between Ellison and Kiffmeyer goes beyond funding and COVID-19 mandates, however. Kiffmeyer this year has pushed a bill to limit outside attorneys the AG can bring in. At issue is Ellison’s use of environmental lawyers from a program at New York University’s law school. The initiative at NYU pays for lawyers to help state attorneys general on environmental issues. And the program is funded in part by the nonprofit Bloomberg Philanthropies, which distributes money from ex-New York City Mayor Michael Bloomberg.
Those attorneys have helped Ellison on several cases, including action against the fishing sinker and battery part manufacturer Water Gremlin, which was releasing dangerous chemicals. Notably, they’ve also helped Ellison on a consumer-protection case accusing ExxonMobil and others of deceiving Minnesotans about climate change.
Republicans see the attorneys as influencing the AG’s office to meet Bloomberg objectives. Ellison disagrees, and in pointed testimony at a conference committee hearing Monday on state government funding, said the lawyers are sworn to help only him and act as employees at his discretion.
The office also uses other similar grant programs. One lawyer on a different grant program is on the office’s wage theft unit. Ellison also believes Kiffmeyer’s bill limiting the AG’s employees would be an unconstitutional intrusion into the work of an independently elected statewide office.
Ellison, for his part, maintains it’s not so easy to shift prosecutors to a different role in areas where they don’t have expertise. And that leaves him with less time and resources for other issues. (Though Ellison did shift resources when boosting the prosecutors helping counties from one to three.)
He also didn’t give Kiffmeyer much credit for funding increases, saying they’ve been the result of negotiations with Walz and the House, not her, and the money has still been inadequate.
Most of all, he said this was the third time he’s asked for money for extra prosecutors. “This is not in response to the crime spike,” he said. “It would help the crime spike but that’s not the origin. I recognized from day one that we needed to have a stronger, bigger group to do criminal prosecution in Minnesota. She’s opposed it from the very beginning.”