Jennifer Schroeder, et al., Respondents,

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0272

Jennifer Schroeder, et al.,
Respondents,

vs.

Minnesota Secretary of State Steve Simon,
Respondent,

Minnesota Voters Alliance, applicant for intervention,
Appellant.

Filed September 8, 2020
Affirmed
Jesson, Judge

Ramsey County District Court
File No. 62-CV-19-7440

Michael M. Sawers, Craig S. Coleman, Tom Pr yor, Kirsten L. Elfstrand, Faegre Drinker
Biddle & Reath LLP, Minneapolis, Minnesota; and

Teresa J. Nelson, David P. McKinney, Amer ican Civil Liberties Union of Minnesota,
Minneapolis, Minnesota (for respondents Schroeder, et al.)

Keith Ellison, Attorney Genera l, Allen Cook Barr, Assistant A ttorney General, St. Paul,
Minnesota (for respondent Minnesota Secretary of State)

Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota (for
appellant)

Considered and decided by Hooten, Presiding Judge; Jesson, Judge; and
Florey, Judge.
S Y L L A B U S
A claimed interest in avoiding unnecessa ry litigation and the spending of public
funds on litigation does not constitute the requi red “interest relating to the property or

2
transaction which is the subject of the action” that must be established to intervene as a
matter of right under rule 24.01 of the Minnesota Rules of Civil Procedure.
O P I N I O N
JESSON, Judge
Appellant Minnesota Voters Alliance (M VA) sought to intervene in a lawsuit
challenging the constitutionality of Minnesota’s statutory scheme governing the restoration
of the right to vote after a felony conviction. According to MVA, respondent Minnesota
Secretary of State Steve Simon—through re presentation provided by the Minnesota
Attorney General’s Office—failed to assert a defense that would result in dismissal of the
action. But the district court denied MVA’s motion to intervene. Because MVA lacks the
necessary interest in the subject of the action, we affirm the district court’s denial of its
request to intervene as a matter of right.
FACTS
This appeal requires us to decide whet her appellant Minnesota Voters Alliance
(MVA) is entitled to intervene in a lawsuit challenging Minnesota’s statutory scheme for
restoring the right to vote after a felony convic tion. In order to resolve this question, we
begin by explaining the underlying lawsuit, before turning to MVA’s interest in
intervening.
In Minnesota, a felony conviction renders an individual ineligible to vote until his
or her civil rights are restored. Minn. Const. art. VII, § 1; see also Minn. Stat. § 201.014,
subd. 2(1) (2018). And before restoration of civil rights can occur, an individual must be
“discharge[d].” Minn. Stat. § 609.165, subd. 1 (2018). But “discharge” is not synonymous

3
with being released from incarceration. Id., subd. 2 (2018). Rather, “discharge” requires
a court order or the expiration of an individual’s sentence. Id. In other words, an individual
convicted of a felony must co mplete his or her entire sentence—including probation,
parole, or supervised release—before the right to vote is restored.
Respondents Jennifer Schroeder, Elizer Eugene Darris, Christopher James
Jecevicus-Varner, and Tierre Davon Caldwell (collectively, plaintiffs) are each citizens of
Minnesota who have been convicted of a felony. Although each individual completed any
required incarceration, they remain on parole , probation, or another form of supervised
release. As a result, they are ineligible to vote.1
This scheme for restoring an individual’s right to vote after a felony conviction,
plaintiffs allege, is unconstitutional. Thro ugh the underlying la wsuit, they sought
declaratory and injunctive relief, including restoration of the right to vote. Respondent
Minnesota Secretary of State Steve Simon (the secretary), through representation provided
by the Minnesota Attorney General’s Office, answered the complain t. In doing so, the
secretary asserted affirmative defenses and sought dismissal of the complaint.
Six days later, MVA filed a notice expressing its intent to seek limited intervention
in the case. MVA characterizes itself as “a nonprofit organization with members who seek

1 For example, according to the complaint, Schroeder was convicted of drug possession in
2013. Schroeder was sentenced to one year in the county jail and was released over five
years ago. But because her sentence also includes 40 years of pr obation, Schroeder will
remain ineligible to vote until 2053. Additionally, plaintiffs alleged in the complaint that,
in 2016, one in 41 adults in Minnesota was on parole or probation. The complaint further
states that “[b]ased on the most recent data available, 52,336 Minnesotans, who are
currently living in the commu nity and bearing the struggl es and responsibilities of
citizenship, are unable to vote due to a past felony-level criminal conviction.”

4
to ensure . . . public confidence in the integrity of Minnesota’s elections . . . and that public
officials act in accordance with the law in exercising their obligations to the people of the
State of Minnesota.” Both the plaintiffs and the secret ary objected to MVA’s noticed
intervention. MVA then moved for limited intervention as a matter of right, or, in the
alternative, permissive intervention. According to MVA, it sought to intervene to assert a
particular defense: the “lack of private cause of action.” This defense, which is based on
MVA’s assertion that there is no private cause of action under the Minnesota Constitution,
would result in dismissal of the case, MVA argued. And, as a taxpayer, MVA maintained
that it had an interest in the attorney gene ral’s office asserting that defense to avoid
unnecessary litigation and wasting taxpayer resources.
After a hearing, the district court denied MVA’s motion to intervene. Although the
court determined that MVA’s motion was timely, it concluded that MVA did not have a
sufficient interest related to the subject of th e action. As a result, it was unnecessary for
MVA to intervene to protect any interest. No r, according to the district court, did MVA
establish that the secretary did not adequately represent its alleged interest. MVA appeals.2
ISSUES
I. Is this appeal moot?

II. Is MVA entitled to intervene as a matter of right under rule 24.01 of the Minnesota
Rules of Civil Procedure?

2 MVA sought to consolidate this appeal with another involving a th ird party seeking to
intervene to assert the no-private-cause-of-ac tion defense. In a special-term order, this
court denied that request. The special-term panel also clarified that the scope of this appeal
is limited to the issue of intervention as a matter of right because the district court’s denial
of MVA’s request for permissive intervention is not appealable. Additionally, the supreme
court denied MVA’s request for accelerated review.

5
ANALYSIS
I. This appeal is not moot.

Before evaluating MVA’s arguments, we mu st decide whether this appeal should
be dismissed as moot, as plaintiffs argue. We consider de novo whether an appeal is moot.
Verhein v. Piper, 917 N.W.2d 96, 100 (Minn. App. 2018).
According to plaintiffs, the procedural posture of the underlying action renders this
appeal moot. MVA did not move to stay the ca se in district court dur ing this appeal. At
the time of oral argument before this court, the parties were awaiting a decision from the
district court regarding summary-judgment motions from each side. During the pendency
of this appeal, the district court granted su mmary judgment in favor of the secretary and
dismissed the complaint with prejudice. Though plaintiffs contended that the appeal was
moot before the summary-judgment decision, th ey assert that the district court’s order
further cements their argument.
An appeal is “moot when a decision on the merits is no longer necessary or an award
of effective relief is no longer possible.” Dean v. City of Winona , 868 N.W.2d 1, 5
(Minn. 2015). Mootness is “a flexible discretionary doctrine” and “not a mechanical rule”
that we invoke automatically. Id. at 4 (quotation omitted). Here, MVA seeks to intervene
to argue a specific defense: that there is no private cause of action under the Minnesota
Constitution. And it desires to do so based on its claimed in terest in ensuring that the
attorney general’s office uniformly asserts the defense to prevent “meritless litigation.” No
current party has argued this defense. Further, while summa ry judgement has now been
granted, the time to appeal that decision has not lapsed. See Minn. R. Civ. App. P. 104.01,

6
subd. 1 (describing the time frame for an appeal). This context supports the determination
that this appeal is not moot. In short, it is po ssible in the future span of this case, that we
could grant the relief MVA desires: intervention to argue its identified defense. See Dean,
868 N.W.2d at 5. Accordingly, this appeal is not moot.3
II. MVA does not satisfy the requiremen ts under rule 24.01 of the Minnesota
Rules of Civil Procedure to intervene as a matter of right.

MVA argues that the district court errone ously denied its motion to intervene as a
matter of right. “Orders concerning interventi on as a matter of right . . . are subject to
de novo review and are indepe ndently assessed on appeal.” State Fund Mut. Ins.
Co. v. Mead, 691 N.W.2d 495, 499 (Minn. App. 2005).

3 Even if an issue may “technically” be moot, we can address its merits if it “is functionally
justiciable and of public importa nce and statewide significance.” In re Schmalz ,
945 N.W.2d 46, 49 n.3 (Minn. 2020). In this appeal, the record is well-developed, and the
parties have adequately briefed and argued the case. Further, we review orders regarding
intervention as a matter of right de novo. See id. (identifying the de novo standard of
review in a matter of statutory interpretation as a factor supporting the conclusion that a
case was functionally justiciable); see also State Fund Mut. Ins. Co. v. Mead, 691 N.W.2d
495, 499 (Minn. App. 2005) (describing the standard of review for orders concerning
intervention as a matter of right). Considering these factors, we conclude that this appeal
is functionally justiciable.
In addition to being functiona lly justiciable, this appeal presents a question “of
public importance and statewide significance.” Schmalz, 945 N.W.2d at 49 n.3. MVA
asks us to decide whether its claimed inte rest—avoiding the spen ding of public funds
defending allegedly unnecessary litigation and ensuring that the attorney general’s office
uniformly asserts available defenses—warra nts intervention as a matter of right.
Resolution of this question implicates the ability of third parties to seek intervention in the
significant number of cases involvi ng the attorney general’s o ffice and the use of public
funds for litigation costs. As a result, re solution addresses an issue of statewide
significance.

7
Rule 24.01 of the Minnesota Rules of Ci vil Procedure governs intervention as a
matter of right. It states:
Upon timely application any one shall be permitted to
intervene in an acti on when the applicant claims an interest
relating to the property or transa ction which is the subject of
the action and the applicant is so situated that the disposition
of the action may as a practical matter impair or impede the
applicant’s ability to protect that interest, unless the applicant’s
interest is adequately represented by existing parties.

Minn. R. Civ. P. 24.01. Under this rule , a proposed intervenor must satisfy four
requirements to intervene as a matter of right. League of Women Voters Minn. v. Ritchie,
819 N.W.2d 636, 641 (Minn. 20 12). Those requirements are “(1) a timely application;
(2) an interest in the subject of the action; (3) an inability to protect that interest unless the
applicant is a party to the action; and (4) the applicant’s interest is not adequately
represented by existing parties.” Id. Each requirement must be met. See id.
Here, the parties agree—as do we—that the first requirement is met. MVA filed its
notice of intervention less than a week after the secretary f iled his answer and filed its
motion to intervene about a month later. Nothing suggests that MVA’s request to intervene
was untimely.
We turn then to the second requirement: establishment of “an interest in the subject
of the action.” Id. To evaluate whether this require ment has been satisfied, we examine
“the pleadings and, absent sham or frivolity,” we “accept the allegations in the pleadings
as true.” Snyder’s Drug Stores, Inc. v. Minn. State Bd. of Pharmacy, 221 N.W.2d 162, 164
(Minn. 1974). But when deciding a motion to intervene as a matter of right, “the merits of
the proposed complaint are not to be determined.” Id.

8
Not every alleged interest in a lawsuit supports intervention as a matter of right. For
instance, in general, personal or familial inte rests are insufficient to warrant intervention
as a matter of right. See Valentine v. Lutz, 512 N.W.2d 868, 870 (Minn. 1994). And if a
judgment will not affect a pro posed intervenor’s legal rights, the proposed intervenor is
generally not entitled to intervene as a matter of right. See Koski v. Chicago & Nw. Transp.
Co., 386 N.W.2d 282, 284-85 (Minn. App. 1986).
At the district court, MVA described its in terest as twofold: (1) an interest in the
attorney general’s office unifo rmly asserting the no-private- cause-of-action defense and
(2) an “interest in ending the meritless litigation as state taxpayers.” But the district court
concluded that MVA’s alleged interest was not related to “the subject of the action.” Minn.
R. Civ. P. 24.01 (emphasis added). Charac terizing MVA’s interest as requiring the
secretary to assert a particular defense—rather than in the constitutionality of Minnesota’s
statutory scheme for restoring the right to vote after a felony conviction—the district court
concluded MVA did not establish the necessary interest to intervene as a matter of right.
We agree. MVA does not profess an interest in the subject of the lawsuit. Nor does
it allege any harm that it has suffered or w ill suffer—other than the expenditure of public
funds defending the suit—as a result of the ac tion. When considering what constitutes
sufficient injury, our decision in Heller v. Schwan’s Sales Enters., Inc., is instructive. 548
N.W.2d 287 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). In Heller, an
individual sought to intervene in a laws uit involving claims arising from salmonella
discovered in ice cream. Id. at 289. The individual did not allege that he suffered any
injury from eating contaminated ice cream. Id. at 291. Rather, he argued that he purchased

9
that particular brand of products and maintained that the retail price of the products would
increase due to the settlement reached and excessive attorney fees. Id. We concluded that
the individual did not demonstrate an interest in the action because he did not claim that he
suffered any injury and “merely criticized the class [attorney] fees and speculated that the
settlement may increase the price of” the products. Id. at 292.
Similarly here, MVA does not argue that it has suffered any injury. Nor does it
describe a future harm that will occur as a re sult of the lawsuit. Instead, MVA criticizes
the defenses chosen by the secretary and the costs incurred to defend the lawsuit. But,
without more, a claimed interest in avoiding unnecessary litigation and the spending of
public funds on litigation does not constitute the required “interest relating to the property
or transaction which is the subject of the action” that must be established to intervene as a
matter of right under rule 24.01 of the Minnesota Rules of Civil Procedure.
MVA asserts three main arguments to pe rsuade us otherwis e. Two of those
arguments are grounded in the requirements of rule 24.01, and one argument urges us to
expand precedent to permit in tervention as a matter of right for a “sound reason.” We
review each argument in turn.
First, MVA argues that the supreme court’s decision in State by Peterson v. Werder
supports its position that concern about the wa steful spending of public funds constitutes
an interest to support intervention as a matter of right. 273 N.W. 714 (Minn. 1937). But
that case is distinguishable. Werder involved the expenditure of government funds to
compensate a property owner for land damages as a result of a highway. Id. at 715. The
parties did not seek formal intervention but were permitted to object to the legality of that

10
expenditure. Id. at 716. The primary difference between this case and Werder is that the
latter specifically involved government expenditures. Accordingly, in Werder, concerns
about the propriety of those expenditures related directly to the subject of the action. Here,
the underlying action has nothing to do with government expenditures. As a result, MVA’s
concerns about the costs of defending an a llegedly “meritless” lawsuit are not directly
related to the eligibility of convicted felons to vote. Werder does not compel the conclusion
that MVA possesses the requisite interest supporting intervention as a matter of right.
Second, MVA contends that it has an interest in the action as a taxpayer4 and that it
meets the requirement for taxpayer standing. 5 We begin by obse rving that taxpayer
standing is not synonymous with demonstr ating an interest sufficient to warrant
intervention as a matter of right. Genera lly, taxpayers “lack standing to challenge
government action absent damage or injury which is special or peculiar and different from
damage or injury sustained by the general public.” Citizens for Rule of Law v. Senate
Comm. on Rules & Admin., 770 N.W.2d 169, 174 (Minn. App. 2009), review denied (Minn.
Oct. 20, 2009). But taxpayers have standing to challenge purportedly illegal expenditures
of state funds. See McKee v. Likins, 261 N.W.2d 566, 571 (Minn. 1977) (stating that “the
right of a taxpayer to maintain an action in the courts to restrain the unlawful use of public

4 According to MVA, it is “a state taxpayer” and “[i]ts membership includes individual
registered voters and taxpayers.”
5 The district court rejected this argument, concluding that “[t]he subject matter of the
litigation . . . has nothing to do with money, let alone taxpayer funds.” And it noted that,
as a practical matter, finding that MVA had an interest as a taxpayer because public funds
were used to retain counsel would result in MVA—or any taxpayer—being permitted to
intervene in any lawsuit where public funds were used to hire counsel, including criminal
matters or civil suits against the state.

11
funds cannot be denied”). Minnesota courts have limited McKee closely to its facts, and a
challenge to “a specific disbursement” is genera lly required to invoke taxpayer standing.
Citizens, 770 N.W.2d at 175.
But the subject of the underlying action is not the expenditure of state funds. Rather,
the subject of the underlying action is the reinstat ement of voting rights after a felony
criminal conviction. And each of MVA’s cite d cases involved a challenge to a particular
government expenditure. See McKee, 261 N.W.2d at 570-71 (holding that taxpayer had
standing to challenge expenditure of tax re venue under rule allegedly adopted without
following the proper rule-making procedure); Werder, 273 N.W. at 715 (challenging the
legality of the expenditure of state funds); Citizens, 770 N.W.2d at 171 (challenging
increases in legislative per diem allowances). That is not the case here. The broad concept
of taxpayer standing does not authorize intervention of right every time government funds
are used to defend litigation.
In sum, we conclude that MVA failed to demonstrate an interest in the subject of
the underlying action as required by rule 24.01.6
Seemingly recognizing that its unusual cl aimed interest does not fit within the
precise requirements of rule 24.01, MVA asks us to grant its intervention motion because
“there is a sound reason to allow the intervention.” At oral argument, MVA explained its

6 In its brief, MVA maintains that it has a pub lic interest in Minnesota’s voting statutes.
According to MVA, it “has a long history of promoting election integrity.” We observe
that MVA did not argue its intere st in this way at oral argument or to the district court.
Nonetheless, we conclude that MVA’s general public interest is insufficient to support
intervention as a matter of right. See Heller, 548 N.W.2d at 292; Koski, 386 N.W.2d at
284.

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“sound reason” as, in essence, ensuring fairness and a uniform result in cases asserting a
private cause of action under the Minnesota Constitution.7 According to MVA, there is an
interest in courts getting pub lic law cases “right” and in th e attorney general’s office
consistently asserting—and courts applying—MVA’s asserted no-private-cause-of-action
defense to avoid bias or the appearance of bias.8
No Minnesota caselaw provides that a party may intervene as a matter of right for a
“sound reason” without meeting the requirements of rule 24.01. Recognizing this lack of
precedent, MVA directs our attention to the analogous federal rule to support application
of its proposed “sound reason” sta ndard. Specifically, MVA cites Missouri-Kansas Pipe
Line Co. v. United States , 312 U.S. 502, 506, 61 S. Ct. 66 6, 668 (1941). But that case
interpreted a previous version of rule 24(a) of the Federal Ru les of Civil Procedure. And
the Supreme Court stated that it was not “dealing with a conventional form of intervention.”
Missouri-Kansas Pipe Line Co. , 312 U.S. at 506, 61 S. Ct. at 668. Rather, that case
involved a consent decree giving a pipeline company the ability to become a party to a suit
in order to enforce its rights under the decree. Id. at 508, 61 S. Ct. at 668. Because the
case involved a particular decree, the genera l intervention principles under the analogous

7 MVA did not raise this “sound reason” argument to the district court. But because it is
fully briefed, relatively straightforward, and our standard of review is de novo, we will
nonetheless address the merits of the argument. See Putz v. Putz , 645 N.W.2d 343, 350
(Minn. 2002) (stating that the rule precluding consideration of issues not raised to the
district court is not ironclad); see also Minn. R. Civ. App. P. 103.04.
8 In its brief, MVA argues that the attorney general’s office “shirked its duties to zealously
represent the state defendants in the case.” Because of the attorney general’s office’s
conduct, according to MVA, it “and the public, are left to wonder if the [a]ttorney
[g]eneral’s [o]ffice, in this high-profile voting rights case , is representing the narrower
interests of the plaintiffs instead of the broader interests of the public.”

13
federal rule did not apply. Id. Missouri-Kansas Pipe Line Co. does not stand for the
proposition that, in any public-law case, intervention as a matter of right can occur for any
“sound reason” when a proposed intervenor cannot satisfy the requirements of rule 24.01.9
Absent any controlling precedent requiring or allowing us to permit intervention as
a matter of right for a “sound reason” independe nt of the requirements of rule 24.01, we
decline to do so here. A deci sion to the contrary would essentially create an exception to
the requirements of rule 24.01. Writing wholesale exceptions to Minnesota rules is outside
the purview of this court. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). In
short, MVA’s “sound reason” argument does not warrant intervention as a matter of right.
Having concluded that MVA has not met the second requirement of rule 24.01 (an
interest in the subject of the litigation), we need not examine the remaining requirements
of the rule.10 Both these requirements are premised on the existence of an interest, which
was not established.

9 MVA also relies on a secondary source which states that “[a] person can be entitled to
intervene in an action in a federal court where, even though not within the precise bounds
of the provisions governing intervention, there is a sound reason to allow the intervention.”
35A C.J.S. Federal Civil Procedure § 167 (2020). Although we can look to federal cases
interpreting analogous federal rules, MVA’ s cited reference does not constitute an
interpretation of the federal rule. See Patterson v. Wu Family Corp. , 608 N.W.2d 863,
867 n.4 (Minn. 2000).
10 The third requirement—“an inability to protect that interest unless the applicant is a party
to the action”—requires us to first conclude that MVA demonstrated an interest, which we
do not. League of Women Voters , 819 N.W.2d at 641. Th e final requirement places a
“minimal burden” on MVA to show “that the existing parties may not adequately represent
[its] interests.” Jerome Faribo Farms, Inc. v. County of Dodge , 464 N.W.2d 568, 570
(Minn. App. 1990) (quotations omitted), review denied (Minn. Mar. 15, 1991). MVA
argues that, when analyzing this requirement, the district court imposed a more stringent
standard found in federal caselaw. That sta ndard provides that “[a]lthough the burden of
showing inadequate representation usually is minimal, when one of the parties is an arm or

14
D E C I S I O N
Rule 24.01 is clear: to inte rvene as a matter of right, a proposed intervenor must
claim “an interest relating to . . . the subject of the action.” MVA failed to do so. MVA
professes concern about the wasteful spending of public funds on “meritless litigation,” a
concern that seemingly stems from its contention that the attorney general’s office does not
uniformly assert the lack-of-a-private-cause-of-action defense.11 Perhaps such concerns
could support a request for permissive interven tion in some cases. But, without more, a
claimed interest in avoiding unnecessary li tigation and the spendi ng of public funds on
litigation does not constitute the required “inter est relating to the pr operty or transaction
which is the subject of the action” that must be established to intervene as a matter of right
under rule 24.01 of the Minnesota Rules of Civil Procedure. Accordingly, the district court
properly denied MVA’s motion to intervene.
Affirmed.

agency of the government, and the case concerns a matter of sovereign interest, the bar is
raised, because in such cases th e government is presumed to represent the interests of all
its citizens.” N.D. ex rel. Stenehjem v. United States , 787 F.3d 918, 921 (8th Cir. 2015)
(quotation omitted). Because we conclude that MVA failed to satisfy the interest
requirement, we need not decide whether this heightened standard applies or whether the
district court erroneously relied on it.
11 We express no opinion on the question of whether a private cause of action exists under
the Minnesota Constitution. Likewise, we do not opine whether asserting the defense
would lead to the dismissal of this case, as MVA contends.