• March 1, 2011

The ACLU v. TiZA First Amendment litigation has been a repeat-customer of Minnesota Litigator.  Putative add-on “intervenors” (parents of school kids and kids) were denied the right to intervene  in the action before the U.S. District Court for the District of Minnesota (Frank, J.) and they have now taken that denial to the U.S. Court of Appeals for the Eighth Circuit and argued the appeal (before the appellate panel comprised of Loken, Melloy, Shepard) in mid-February.  

Well-known First Amendment scholar Michael W. McConnell argued on behalf of the appellants/parents of kids at the challenged TiZA charter school.  The 8th Circuit panel was fairly taciturn during Prof. McConnell’s presentation.

Dorsey & Whitney LLP trial partner, Peter Lancaster, argued on behalf of the ACLU.  Out of the blocks, Judge Loken came at Lancaster, questioning whether intervention would truly have prejudiced the ACLU.  The ACLU argued that the intervenors’ efforts were untimely and would drag this case on.  Judge Loken suggested that this type of litigation drags on for years and that a few months delay would be inconsequential in big picture.

Echoing a recent call by the trial judge, Lancaster for the ACLU also implored the Court to spare the children, to not allow them to be dragged into the case.  “We have a trial date of May,” Lancaster concluded, and he urged the Court to keep the case on track.

The panel came at Lancaster fairly relentlessly.  It seems clear that the Eighth Circuit was leaning toward reversal of the denial to intervene although we’ll have to wait and see…

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