Physician alleges Dem attorney general had secret role in medical board probes against him

Doctors nationwide have risked their medical licenses to speak against COVID-19 policies, question vaccine safety and effectiveness, and promote alternative treatments such as ivermectin. One of them, Ohio's Sherri Tenpenny, received an indefinite suspension last week.

But the most important license battle may be playing out in Minnesota, where family physician Scott Jensen, also a former Republican state senator, claims that Democratic Attorney General Keith Ellison became "a driving force" behind medical board investigations against him when he announced his campaign for governor against incumbent Democrat Tim Walz in March 2021.

Ellison served as the deputy chair of the Democratic National Committee from 2017 to 2018 and a member of the Minnesota House of Representatives from 2003 to 2007, where he co-chaired of the Congressional Progressive Caucus. 

As the GOP nominee for that race last summer, Jensen pledged that the "juggernaut" Minnesota Board of Medical Practice would be "dealt with" if he were elected. 

Jensen sued the board and its members in both official and individual capacities in federal court on June 6, claiming its repeated investigations based on his public statements constituted an unconstitutional "weaponization of a government agency" whose members were appointed by Walz, his successful opponent in the 2022 election.

Ellison's office refused to turn over certain categories of data in response to Jensen's public records request for documents going back to March 9, 2020 that name Jensen or identify him as "the subject of the data." Ellison's stonewalling prompted Jensen's June 6 state lawsuit against Ellison and his office under the Minnesota Government Data Practices Act, amended June 28.

The office claimed Ellison's staff had received "harassing and/or threatening calls" following Jensen's social media posts and that their "security" would be threatened if they gave him new information and Jensen posted it.

Hence the denial was "based purely on the possibility that Dr. Jensen might publicly speak about the data, and some other person might then be upset" with Ellison's office and "somehow, someday, take action against" Ellison's employees, according to the suit, which asks whether the office would withhold the same information from the news media for fear of what might be reported.

The parties told the court last week they had "narrowed the scope of disputed issues and data." They each have until Aug. 18 to file motions on how the court should rule, and Ellison's office must explain which data it's still withholding and the basis for doing so. They must complete legal discovery by Nov. 13.

Jensen has crowdfunded nearly his entire $200,000 goal to pay for the lawsuits in less than four months.

His suit against the board claims he went nearly 40 years without a single investigation of his medical practice until the board proceeded to launch five over the next two years, starting when Jensen was still vice-chair of the Senate Health and Human Services Committee.

The 18 anonymous complaints cited his public statements on COVID subjects including vaccines, masks and death-certificate reporting as well as his personal practices on masking and vaccination. One investigation demanded records of patients to whom he prescribed ivermectin. 

All were eventually closed with no sanctions, but the investigations lasted anywhere from a week to more than a year, the last of which continued through his entire gubernatorial campaign. This spring the board brought him before the Complaint Review Committee to relitigate the dismissed complaints and add several new ones, represented by Ellison's office.

The board filed a motion to dismiss last month, claiming it followed its statutory obligations in response to complaints against Jensen and that it enjoys sovereign immunity as a government body and its members enjoy qualified immunity as government officials.

Because Jensen does not dispute the board "investigated the complaints and determined that the complaints should be dismissed without disciplinary action," most recently March 24, "there is no ongoing state action to enjoin," it said.

The board also argued that Jensen's speech was clearly not chilled by its investigations, as Jensen "continued to speak publicly on the same topics that were the subject of some of the allegations" in the 18 complaints while the board continued the "otherwise-confidential complaint resolution process."

"The process was the punishment," Jensen's lawyers at the Upper Midwest Law Center told the federal court Aug. 11  in his opposition to the board's motion to dismiss. It's also representing him in the Ellison state lawsuit.

"The Defendants knew they had no authority to regulate Dr. Jensen’s political speech, and they knew they could dismiss complaints by unreasonable, angry, and overly political citizens" but did not, Jensen's filings say. As a result, Jensen spent "nearly his entire campaign for Governor under a cloud of constant uncertainty, not knowing" which of his statements the board would use "as tools to chill his speech."

Starting with the fourth investigation, which concerned Jensen's participation in a lawsuit against emergency use authorization for COVID vaccines under age 16, the board warned Jensen it could reopen investigations with new information. The board also told him for the third and fourth investigations that the complaints would remain on file.

"The ordinary person, after 40 years of the practice of medicine without an investigation, followed by a sudden series of investigations based on speech alone, combined with the stress inherent in a modern political campaign, would have been chilled from exercising his First Amendment rights," Jensen's lawyers argue.

“You can’t use the power of an oversight board to repeatedly investigate someone just because of their political speech,” Jensen's attorney James Dickey, of the Upper Midwest Law Center told The Tennessee Star. “And you can’t withhold government data from someone because you don’t like what he might say to the public.”