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TP Taps Brendan Johnson to Sue State, But Focuses on Discrimination Instead of Breach of Contract

The South Dakota Department of Health canceled its contract with the Transformation Project. The reasons the Department gave for the cancellation appear to be bogus. The Transformation Project thus intends, quite sensibly, to sue the state, but for discrimination, not breach of contract:

Brendan Johnson, a former U.S. district attorney who works for the law firm Robins Kaplan, told South Dakota Searchlight that his firm will represent The Transformation Project at no cost in a civil action against the state.

…The group’s claim originates with the contract cancellation, Johnson said, but “it’s not a contract dispute.”

“This is about violating federal law, equal protection,” Johnson said. “You cannot discriminate against people on the basis of sexual orientation or gender identity. We believe that’s in violation of agreements between the state of South Dakota and the federal government that provided these funds” [John Hult, “Transgender Advocacy Group Plans to Sue State over Contract Cancellation,” South Dakota Searchlight, 2022.12.22].

I suppose Johnson and TP can establish anti-trans discrimination in court by citing the swift timeline of the contract cancellation: conservative national newsrag The Daily Signal came hooting about the state giving money to a pro-trans group; Team Noem hooted back about  how “state government should not be supporting” TP and its “radical ideologies; and DOH canceled the contract. But making the case about discrimination plays right into Noem’s hands. She wants the argument to be about transgender issues. She can easily recruit outside legal help and turn the case into one more moneymaker for her 2024 campaign.

A breach-of-contract lawsuit would be cut and dried—and while far drier, also more cutting. Instead of dragging all the preliminaries and conservative press into court, Johnson could present two documents: the contract and the cancellation letter. He could tick through each other contract lines the letter says TP did not do. He could ask TP’s exec about each contract line: “Did you do X?” TP’s exec could testify, “Yup, did it,” or “Nope, didn’t do it, because it wasn’t time to do it yet.” Johnson could have real fun putting the DOH official who wrote the letter on the stand and asking her the same questions, making her squirm and spin and admit that she either didn’t know whether TP had fulfilled its contract obligations or that she knew full well that they had or were on schedule to and that her letter was basically bunk. At that point, it wouldn’t matter if TP is promoting trans rights, gay rights, or Martian rights—a contract is a contract, TP was fulfilling it, and the state broke it. TP is an honest contractor, and Noem and her DOH are liars and cheaters whose bumbling disregard for basic law would once again cost taxpayers money.

Noem wants this case to be about the culture war. TP and Johnson could take that wind out of her black sails by making this case about simple contract law.


  1. Scott Ehrisman 2022-12-26 10:14

    Maybe he should go whole hog and sue for discrimination, breach and 1st Amendment violations.

  2. P. Aitch 2022-12-26 11:16

    It can be difficult to notice it in SD but conservative opinions are absolutely in the minority in USA. Discrimination against any group just because you don’t like their platform planks is hurtful to conservative national political aspirations.
    – We in blue states pay attention to discrimination and we’re more influential to the third of voters who register as independent or unaffiliated than discriminators are influential to voters who register as independent of unaffiliated.
    – In short, go crazy you MAGA’s. No matter what you believe only 40% of voters agree with your thinking.

  3. larry kurtz 2022-12-26 12:41

    What Porter said. Follow the money.

  4. Cory Allen Heidelberger Post author | 2022-12-26 14:39

    Scott, I’m all for beating the state in court on every viable count. But discrimination seems harder to prove than breach of contract. Winning the discrimination case requires getting into the heads of state officials; proving breach of contract depends on much more objective, accessible evidence.

    And First Amendment? Whose First Amendment rights have been infringed in this affair? No one has a First Amendment right to a state contract.

  5. jkl 2022-12-26 15:07

    I fear TP is getting a little too cute as they want this to be a culture issue also. Johnson will probably lose and the funding that may have helped a few will be lost.

  6. grudznick 2022-12-26 16:59

    I bet you there is language in this here contract that says the state can terminate at will. And you fellows who want to sue for federal money or to take more taxpayer money are just grubbing to be punitive. grudznick says just pay these fellows at The Transformation Project their money, and tell them to move along. It’s not like Mr. President Uncle Joe Biden is going to come along and smite anybody for giving them the money for not doing anything. Or hey, maybe they were doing it. Doesn’t matter, dole out the dole.

    Win (TTP), Win (Libbies in general), Win (the GLQBGLT folks), Win (the HCW), Win (Department of the Health), Lose (taxpayers)
    The taxpayers always lose.

  7. Richard Schriever 2022-12-26 18:09

    Cory, I believe you are misreading this when you say it is about discrimination. It is not. It is about a breach of contract with the FEDERAL government, who, as you note – supplied the FUNDING. That funding was dependent on meeting the legal requirements set forth in every Federal spending program which prohibits said discrimination. It is that contractual term that Noem/SD violated.

  8. Arlo Blundt 2022-12-26 18:17

    Begrudgingly, have to agree with Grudznick. There is no doubt a c cancellation clause that heavily favors the State.

  9. Cory Allen Heidelberger Post author | 2022-12-26 19:05

    Grudz, how can a contract be a contract if one can break it at will, without cause?

    Richard, if that’s the way the suit can be phrased, as long as it revolves around contract requirements, then we may be on good footing.

  10. Cory Allen Heidelberger Post author | 2022-12-26 19:09

    Grudz, the contract is online. It includes this provision on page 4:

    This contract may be terminated by either party hereto upon thirty (20) days written notice, and may be terminated by the State for cause at any time, with or without notice.

    “for cause” is the key phrase. Dep. Sec. Valenti cited failure to fulfill contract obligations as the cause. If there is no evidence that TP was failing to perform contract obligations, then there is no cause, and the state has violated the contract.

    Am I reading that clause and the surrounding conditions incorrectly?

  11. Cory Allen Heidelberger Post author | 2022-12-26 19:10

    RIchard, yes, Johnson appears to be leaning on federal contract requirements, but that tack still requires proving discrimination took place, and that seems to be a harder case than simply demonstrating that the state cited bogus reasons for breaking the contract.

  12. grudznick 2022-12-26 19:15

    You come over, last summer, and say you’ll mow grudznick’s lawn for a cold, ice cold, 12-pack of your favorite “lite” beers. I say “OK” and we shake hands. But 2 days pass and you still haven’t mowed my lawn and now I find that I have some neighbors who despise you, despite my fondness for you, and want to wave sticks at me if I let you mow my lawn. And you still haven’t mowed my lawn. And I’m not fond of these neighbors, particularly the hairy fellow to the east, waving sticks at me.

    So, instead, I get the young fellow from down the road who has the mom that wears the nice blouses to mow my lawn, for which I pay him cold hard American cash, and now you can’t mow it and get your 12-pack of “lite” beers. Did I break our contract, or did you, or does life just move on with a couple of lessons learned?

  13. Spike 2022-12-26 20:38

    We all know there are many state contracts (some given under rather dubious circumstances) out there with much greater non-compliance that aren’t being canceled on the spot. Noem owns the state govt, is wrecking havoc on good employees, and nobody can do anything about it.

  14. Arlo Blundt 2022-12-26 20:43

    Yes, it is good to be the King. The State has many, many lawyers on staff with nothing but time on their hands. The State will not be upset or distracted by another lawsuit. For them, it is a living.

  15. grudznick 2022-12-26 20:47

    And Mr. Johnson, the younger, will get a few newspaper articles written in whatever newspapers still exist. That is really his point.

  16. larry kurtz 2022-12-27 10:51

    Johnson, who’s Johnson
    Which Johnson overgods kids?
    Kristi’s Johnson does.

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