The 2021 portion of the Confessions Book Tour is wrapped up and I’m back in Brainerd getting caught up on things. The most frequent request I’m getting these days, both on the road and in my message stream, is for a status update on our lawsuit with the Minnesota board of licensure (they have a really long, official name, but everyone knows what I mean when I write “board of licensure”).
I know that it’s important that we fight this battle, but I’ve insisted from the start that we should not get bogged down with it or let it take away from our momentum. After all, slowing our momentum is what the engineers who abuse this process are trying to accomplish.
In brief, Strong Towns filed a federal lawsuit against the Minnesota board of licensure and the board of licensure filed an administrative action against me in state court. Both are proceeding in parallel, but we’re waiting on a procedural ruling in federal court to determine which case will go forward first. If the federal judge denies the state’s motion to dismiss, then the state action will be put on hold while the federal case moves ahead. If the federal judge opts to not hear our case, then the state-level action will proceed first.
Each case is interesting in its own way.
The Case in United States District Court
After months of back and forth with the board of licensure, Strong Towns filed a federal lawsuit against the board on May 18, 2021. The lawsuit had two counts. First, that state of Minnesota is violating my first amendment right to free speech and, second, that the state’s actions are a retaliation against me for protected speech.
The state replied to this lawsuit with a motion to dismiss and concurrently filed a 17-page memo supporting that motion. It was tough for me to read because, of course, the attorney for the licensing board did his best to make me look like a scoundrel. They claim I “falsely held [myself] out to the public,” I “falsely certified,” and I “unlawfully” filed a “false certification.” Later they said I was “lying” about being a licensed engineer and that I was “misrepresenting” my qualifications. This is the very slander we are seeking to not have unilaterally ratified by this prejudicial board.
For those of you new to this issue, the record is really clear and straightforward. I am a fully qualified and licensed engineer in the state of Minnesota. My license expired in 2018 and I failed to renew it on time—that was my mistake and, when I discovered it (many weeks before the board notified me), I took immediate action to correct that mistake. In the intervening period, I didn’t do any engineering work, undertake or attempt to undertake any work that required a license. The transgression they are prosecuting me for is that my bio on this website said I was licensed for a period when my license was technically expired. I offered to pay a fine and agree to these facts, but they insisted on findings that I acted dishonestly, misrepresented myself, and committed intentional falsehoods. In other words, they want to—in the words of the complaint made against me—label me a “fraud” so as to discredit me and my work in the Strong Towns movement.
The strongest case that the state has in their motion to dismiss is something known as the Younger abstention doctrine. I’m not an attorney and so take this as the modestly informed insight that it is, but the Younger abstention doctrine applies when the state process (in this case, the administrative hearing) will adequately address the federal constitutional issues. In such an instance, the federal court does not need to intervene because federal rights are already protected.
In this case, the attempt to discredit me and the Strong Towns movement, to retaliate against me for protected speech, and to rob me of my right to speak free from state coercion, is manifest by the state process itself. We’ll see what the judge decides.
One other interesting thing to note about the state’s argument is that they claim my speech—calling myself a “professional engineer” in my bio during the period of time my license was lapsed—is commercial speech and thus not protected. In a sense, that makes the licensing board a de facto cartel enforcer, regulating the label “professional engineer” for the exclusive benefits of its members. That’s not the intention that the board testified to at the state legislature, nor is there anything to suggest that this is what the legislature was trying to accomplish when it passed this law in 2014.
We filed a response to their motion. After being called a liar for 17 pages in the state’s filings, our response was rather cathartic. Of course, the state got to file a response to our response, which repeated a lot of the same arguments, though added that the Strong Towns Academy, where some courses require a fee to watch, makes my speech commercial. Well, we didn’t launch the Academy until after the window of when my license expired, but it’s just semantics at this point.
After these filings, there was a hearing in front of a federal judge. I was on book tour and did not get to attend, but I received an update from my attorney. Out of prudence, I won’t relay everything we discussed, but I will note that apparently the judge was very interested in whether or not I had actually done any engineering work. I take that as a positive sign for the argument we are making.
Right now, we are waiting for the federal judge to rule on the state’s motion to dismiss. If that motion is denied, the federal case will proceed to discovery. My hope is that the licensing board drops the matter at that point, which they should, or that we can reach some kind of agreement to end this. It needs to end.
If the state’s motion is upheld and the case is dismissed, then we’ll work through the state level and hope that the state process will uphold federal constitutional rights.
State of Minnesota Administrative Hearing
After we filed our case in federal court, but before the state replied, the board of licensure filed an action against me in state administrative court. The filing was very straight forward, alleging two counts of violation: (1) that I represented myself as a professional engineer while my license was expired, and (2) that I made false statements saying I had not represented myself as a professional engineer without licensure in the application for renewal.
If the case does proceed, the facts are pretty clear. My bio on this site, which is often read before I give a public lecture, said I was a “professional engineer licensed in the state of Minnesota” during a period of time when my license expired, before I renewed it. When I renewed my license, I signed that I had not represented myself as a professional engineer when I was not licensed. I read that as representing myself in the practice of engineering or in the pursuit of engineering work; they read it as any representation in any way, including in my bio.
We had a scheduling conference with the administrative judge and there was one notable thing that occurred. The state’s attorney requested—and I forget the technical term for it—that the discovery in the administrative case not be able to be used in the federal case, and vice versa. That seemed odd to me and, since my attorney did not agree to it, I asked him about it afterward.
He said that is generally done by defendants in cases where corporate secrets are revealed during discovery in one case, and the defendant will ask that to be sequestered so it can’t be used in another. There is no compelling reason, let alone a state interest, to not get all the facts out on the table in this case and have them be used everywhere they apply. No state interest, that is, unless the state’s interest here is something other than a just outcome.
For more than a year now, it’s been clear that the licensing board is not interested in a just outcome but in using its power to discredit me and this movement, while also intimidating those within the profession who would speak out in support of a Strong Towns approach. I hoped that, once they got an attorney involved, they would be forced to moderate their approach. That hasn’t happened yet.
In September, we filed our first set of discovery requests. As part of that, we asked the state to admit four things that are factually true, important to this case, and should not be in dispute:
Admit that You have no evidence that Respondent performed any work as a professional engineer during the period his licensure was lapsed.
Admit that You have no evidence that Respondent had knowledge that his licensure had lapsed until he renewed it.
Admit that Respondent renewed his license before the Board sent any notification of a Complaint against him.
Admit that You renewed Respondent’s license despite having knowledge of the Complaint against him.
The second and third admission go directly to my intent, which is the core of the dispute and the thing that the state has doggedly insisted on for over a year now.
I don’t know how any of these statements could be denied. They are all true. Yet, if they admit these statements are true, then what is their case that I lied, misled, or acted dishonestly?
There is none. There never has been one.
At the state level, we are awaiting their response to discovery and, more importantly, we are waiting to hear the judge’s decision in the federal case.
How You Can Help
After dealing with this intensely for six months prior to our filing the federal court case, it has been a nice respite to be able to leave this in the competent hands of our legal team and be able to focus on our work at Strong Towns. With a ruling from the federal court judge anticipated in the next month, that calm is going to end soon. I’m anticipating a busy 2022 for one, or both, of these cases.
I want to settle this matter, and it should be settled, but we will not settle in any way that can be used to discredit our ideas or this movement. We are also going to fight so that the complaint process can not be used to intimidate others who speak up. The state licensing board works for the protection of Minnesotans, not for a cartel of engineers.
We are also going to work to change the law, hopefully in a way that can be an example for other states. In 2014, members of the licensing board clearly described that the provisions now being used against us were meant to provide clarity for those engaged in providing engineering services. That is a worthy pursuit, but the board has strayed far from that in their abuse of power. I’m hopeful the legislature will clarify their intent, and redirect the board of licensure, in the coming session.
The simplest and most powerful way to support us is to make a donation to Strong Towns. We are a 501(c)3 non-profit organization, so your donation is fully tax deductible. If you are in a position to help us, please consider doing so. We are grateful for all the support so far and, on behalf of everyone who identifies with the Strong Towns movement, we promise to see this through.