CASE 0:20-cv-01275-DWF-BRT Document 14 Filed 06/08/20 Page 1 of 14

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Scott W. Johnson, Civil File No. 20-cv-01275-

DWF/BRT
Plaintiff,

vs.
FIRST AMENDED COMPLAINT
Jan Malcolm in Her Official and Individual AND DEMAND FOR JURY TRIAL
Capacities; and Michael Schommer in His
Official and Individual Capacities,

Defendants.

Plaintiff Scott W. Johnson (“Plaintiff” or “Mr. Johnson”) brings this action against

Defendants Jan Malcolm in her official and individual capacities as Commissioner of the

Minnesota Department of Health (“Ms. Malcolm” or the “Commissioner”) and Michael

Schommer (“Mr. Schommer”) in his official and individual capacities as an employee of

the Minnesota Department of Health (collectively the “Defendants”) to rectify an

ongoing deprivation of Mr. Johnson’s First Amendment rights under the United States

Constitution. As grounds therefor, Plaintiff alleges as follows:

INTRODUCTION

1. Plaintiff Scott Johnson has worked as a professional journalist for more

than 25 years covering Minnesota and national news. Most recently, Mr. Johnson has

covered Minnesota’s response to the COVID-19 outbreak. Between April 10, 2020 and

April 27, 2020, the Minnesota Department of Health (“MDH”) authorized Mr. Johnson to

access a media only telephonic conference line to ask questions of individuals presenting

during the daily briefings held by the MDH regarding the state’s response to COVID-19.
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2. On April 27, Mr. Johnson asked a question that possibly exposed problems

with the MDH’s strategy for combating the COVID-19 outbreak. MDH emails show that

this question was “flagged” for further discussion between MDH staff and the Governor’s

staff. Mr. Johnson was thereafter excluded from all future daily briefings without

explanation.

3. The MDH’s decision to exclude Mr. Johnson was a form of content- and

viewpoint-based discrimination that infringes upon his First Amendment Rights as an

individual and as a member of the press. Mr. Johnson brings this action to rectify this

ongoing constitutional violation.

JURISDICTION AND VENUE

4. This is an action for civil damages and injunctive relief pursuant to 42

U.S.C. § 1983 based on the violation of Mr. Johnson’s rights under the First and

Fourteenth Amendments to the United States Constitution. Jurisdiction in this Court

exists pursuant to 28 U.S.C. § 1331 and 1342 based on violations of 42 U.S.C. § 1983

and claims arising under the United States Constitution.

5. This Court has personal jurisdiction over all Defendants because they have

substantial contacts with and/or are domiciled within this District.

6. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2) in that “a

substantial part of the events giving rise to the claim occurred” in this District.

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PARTIES

7. Plaintiff Scott Johnson is a citizen and resident of Minnesota, an attorney,

and a journalist. For more than 25 years Mr. Johnson has written professionally on

public policy issues including income inequality, income taxes, campaign finance reform,

affirmative action, welfare reform, and race in the criminal justice system. Plaintiff’s

articles have appeared in magazines including National Review and the Weekly Standard

as well as newspapers including the New York Times, the New York Post, the Minneapolis

Star Tribune, and the St. Paul Pioneer Press. Currently, Mr. Johnson writes for Power

Line, an award winning conservative news website that has been reporting stories and

providing commentary on the news for more than eighteen years.

8. In addition to his career in journalism, Mr. Johnson has also been a

successful member of the Minnesota Bar since 1979. Mr. Johnson clerked for the Eighth

Circuit from 1979 to 1981, when he entered private practice as an associate and partner at

Faegre and Benson from 1981 to 1997. In 1997, Mr. Johnson became Senior Vice

President and regional counsel at TCF Financial, a position he held until 2009. Between

2010 and 2014, Mr. Johnson served as counsel for Delta Dental of Minnesota.

9. Defendant Jan Malcolm is the Commissioner of the Minnesota Department

of Health. Ms. Malcolm’s office is located at 625 Robert Street North, Saint Paul, MN

55164. As commissioner for the MDH, Ms. Malcolm is responsible for directing the

work of the MDH, and has supervisory control over the MDH daily briefings relating to

the COVID-19 outbreak.

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10. Defendant Michael Schommer is an employee of the MDH. Mr.

Schommer’s office is located at 625 Robert Street North, Saint Paul, MN 55164. As an

employee of MDH, Mr. Schommer has daily operational control over the MDH daily

briefings.

STATEMENT OF FACTS

11. On March 13, 2020, Minnesota Governor Tim Walz issued Executive

Order 20-01, “Declaring a Peacetime Emergency and Coordinating Minnesota’s Strategy

to Protect Minnesotans from COVID-19.”

12. In Executive Order 20-01, Governor Walz noted that “the infectious disease

known as COVID-19 . . . has now been detected in 118 countries and territories,

including the United States. COVID-19 has been reported in 42 states. There are over

1,600 confirmed cases nationwide, including fourteen in Minnesota.”

13. The Governor’s Executive Order 20-01 further stated that “MDH has been

preparing for and responding to the CODID-19 pandemic in Minnesota,” and determined

that “MDH will continue to lead the coordination of the State’s response to COVID-19.”

14. On March 25, 2020, Governor Walz issued Executive order 20-20

“Directing Minnesotans to Stay at Home.” Among other things, this executive order

mandated that “all persons currently living within the State of Minnesota . . . stay at home

or in their place of residence” except to engage in certain activities and work.

15. On March 27, 2020, MDH began hosting a daily briefing regarding the

COVID-19 outbreak, and Minnesota’s response to the pandemic. These daily briefings

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are streamed live via the publicly accessible MDH website and are also televised and

broadcast to the public at large.

16. All participation on the daily MDH calls is conducted entirely remotely in a

conference call format, with the audio broadcast and live-streamed. Due to this remote

format, the MDH designated a conference line for journalists wishing to ask questions of

the individuals presenting during the MDH daily briefings. This conference line was not

available to the public at large, and journalists desiring access to the conference line were

required to request access from the MDH, which would then add them to a distribution

list of journalists authorized to ask questions during the daily briefings.

17. Journalists on the distribution list would receive email notification of each

day’s call, advising them of a telephone number to call, and an access code to enter,

which would allow them to participate in a conference call during which they could ask

questions of the presenters (the “MDH Conference Line”).

18. The journalists on the MDH Conference Line entered a telephone queue to

ask their questions. Those journalists that asked their questions live had their questions

and the MDH panelists’ responses broadcast live via the internet across the state.

19. Due to the number of journalists on the MDH Conference Line, those

individuals that did not have their questions answered during the daily briefing were also

invited to submit written questions to the MDH following the briefing. Upon information

and belief, MDH responds to these written questions, and responded to Mr. Johnson’s

written questions through April 27, 2020.

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20. On April 9, 2020. Mr. Johnson requested access to the MDH Conference

Line via an email to the MDH.

21. On April 10, 2020, Mr. Schommer responded to Mr. Johnson’s request, and

added him to the distribution list of journalists, granting him access to the MDH

Conference Line. In granting Mr. Johnson’s request for access, neither Mr. Schommer

nor any other MDH representative asked for information about the location of Power

Line or how widely it was distributed.

22. Although there were a few days during which MDH inadvertently excluded

Mr. Johnson from the Conference Line, Mr. Johnson generally received emails providing

the conference line access information from April 11, 2020 until April 27, 2020.

23. While Mr. Johnson had access to the MDH Conference Line, he asked a

number of questions following the MDH daily briefing, and on at least two occasions

published MDH’s responses to his questions in articles published on Power Line.

Quoting the MDH response verbatim allowed Mr. Johnson to provide readers insight into

MDH’s actions and thinking relating to COVID-19.

24. On April 27, 2020, after attending the MDH daily briefing via the MDH

Conference Line, Mr. Johnson sent an email to MDH asking two follow-up questions

regarding that afternoon’s presentation. Mr. Johnson asked the following two questions:

Question: Referring to the 286 total deaths to date, every

decedent under age 70 has died in long-term care or similar
setting. The youngest person to die outside long-term care was
in his 70’s. Why is it necessary to close the schools and shut
down the state to protect the at-risk population?

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Follow-up: How many decedents were moved from nursing

home to hospitals prior to their death? Would their death be
included in the long-term care number not?

25. The MDH responded to the first question, stating:

We have had deaths in people younger than 70 and certainly

many cases in all age groups. It is necessary to take the
community mitigation measures we have because all
Minnesotans are at risk from COVID 19, as none of us has
immunity. Some people, like those in long-term-care and those
with underlying health conditions, are far more at risk than
others. But if we didn’t reduce transmission in the community
as we have with the stay at home order, we would see far more
disease circulating and many times more serious cases that
would quickly overwhelm our health care system. Then, even
less-vulnerable people would not be able to get the care they
needed, such as intensive care, ventilators, etc., so we would
see far more deaths in people outside of the very frail and
elderly. That is what has happened in places like Italy and New
York.

26. The MDH responded to the second follow-up question stating:

Just as are cases, deaths are recorded by place of residence. So

if someone’s place of residence prior to their death was listed
as a long-term care facility, regardless of whether they were
hospitalized prior to their death, they would be recorded as a
death in a long-term-care resident.

27. Prior to issuing a response to Mr. Johnson, Mr. Schommer forwarded Mr.

Johnson’s questions to Jeremy Drucker and Emmalynn Bauer, employees of Governor

Walz’s office, and stated, “Flagging as an FYI for future discussion.”

28. At all times relevant to this Complaint, Mr. Schommer was acting under the

supervision, and at the direction of Ms. Malcolm as Commissioner of the MDH.

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29. On information and belief, Mr. Schommer, under the direction and

supervision of Ms. Malcolm, “flagg[ed]” Mr. Johnson’s question to discuss the means by

which he, Ms. Malcolm, and the MDH could avoid such questions in the future and what

steps they could take to punish Mr. Johnson for asking question that exposed possible

flaws in strategy MDH has employed in responding to the COVID-19 crisis.

30. On April 28, 2020, Mr. Schommer, under the direction and supervision of

Ms. Malcolm, chose not to provide Mr. Johnson with the phone number and access code

that would allow him to access the MDH Conference Line and ask questions of the

presenters during the briefing. In doing so, no representative from the MDH asked Mr.

Johnson about the location of Power Line or how widely it was distributed.

31. Mr. Johnson sent an email that afternoon to Mr. Schommer and Doug

Schultz, both MDH employees, asking why he was not provided this information. The

MDH did not respond to Mr. Johnson’s email.

32. On April 29, 2020, Mr. Johnson sent another email to MDH employee Mr.

Schommer, asking why he was not invited to participate in the daily briefing. MDH

again failed to respond.

33. Mr. Johnson sent another email on May 2, 2020 to Mr. Schommer and Mr.

Schultz asking why MDH was excluding him from the MDH Conference Line. Again,

MDH failed to respond.

34. On May 11, 2020, Mr. Johnson sent one final email asking that the MDH

include him in the daily briefings and asking why MDH had omitted him from the

briefings. MDH did not respond.

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35. In addition to these emails, on approximately three occasions, Mr. Johnson

called and left messages for Mr. Schommer asking why he was being excluded from

covering the daily briefings. Mr. Johnson did not receive a response to any of his calls.

36. To date, no representative of MDH has provided Mr. Johnson with

journalist access to the daily briefings, and has not provided him with any explanation for

why they chose to exclude him from more than a dozen briefings.

37. On information and belief, MDH did not revoke any other journalist’s

access to the MDH Conference Line at or around this same time.

38. The MDH’s decision to exclude Mr. Johnson has significantly hampered

his ability to cover the MDH daily briefings, including preventing him from asking

questions and receiving answers live, and from receiving written responses to his

questions following the daily briefing.

39. Despite his exclusion from the MDH Conference Line, Mr. Johnson

attempted to ask the MDH questions about the MDH daily briefing via email. MDH did

not respond to Mr. Johnson’s questions after April 27, 2020.

40. This exclusion has not only harmed Mr. Johnson, but also the many readers

who rely on Power Line as an essential news source.

41. As MDH never responded to Mr. Johnson’s questions regarding his

exclusion from the MDH Conference Line, Mr. Johnson did not learn of Mr. Schommer

and MDH’s decision to “flag” his question and exclude him on the basis of the content

and viewpoint expressed in that question until on or about May 18, 2020, when Mr.

Johnson received responses to a data practices request he issued to Governor Walz’s

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office. Mr. Johnson also issued a data practices request to MDH, which has

acknowledged receipt of the request, but has not yet responded substantively.

42. On May 19, a different reporter for a different media organization received

a statement from MDH representatives providing an alleged basis for excluding Mr.

Johnson from the MDH Conference Line. MDH representatives implied Mr. Johnson

was excluded from the MDH Conference Line because he is not a professional journalist.

43. The alleged lack of credentials or professional journalist status as a basis

for excluding Mr. Johnson from the MDH Conference Line is plainly pretext and cannot

be squared with the facts or MDH’s own conduct between April 10 and April 27, 2020

with respect to Mr. Johnson’s access.

44. Upon learning that the MDH excluded him based on his viewpoint, Mr.

Johnson promptly engaged counsel and attempted to resolve this issue expeditiously,

without involving this Court.

45. Following the filing of Mr. Johnson’s initial Complaint, representatives of

the MDH stated that Mr. Johnson was excluded due to a policy implemented by MDH to

reduce the number of journalists on the MDH Conference Line. Representatives of the

MDH implied that this policy took multiple factors into account, including whether the

news organization was local and the reach of the publication.

46. On information and belief, to the extent that such a policy exists, it was

created at the direction of Ms. Malcolm and Mr. Schommer for the regulation of the

MDH daily briefings.

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47. To the extent that such a policy exists, Ms. Malcolm and Mr. Schommer

designed it with the purpose of excluding Mr. Johnson from the MDH Conference Line.

48. In the alternative, to the extent that such a policy exists, Ms. Malcolm and

Mr. Schommer have selectively enforced the policy to specifically target Mr. Johnson.

COUNT I

(Violation of 42 U.S.C. § 1983 – First Amendment)

49. Mr. Johnson repeats, realleges, and incorporates the allegations in the

paragraphs above as though fully set forth herein.

50. Defendants’ decision to revoke Mr. Johnson’s access to the MDH

Conference Line violates the First Amendment made applicable to the States through the

Fourteenth Amendment.

51. Mr. Johnson’s questions following-up on the April 27, 2020 daily briefing

were protected activities under the First Amendment of the United States Constitution.

52. The MDH created a limited public forum by designating a state controlled

conference line for use by journalists to ask questions during the MDH daily briefing.

Journalists in this limited public forum entered a que to ask questions during the MDH

briefing, and their questions would be broadcast across the state via the internet.

53. After creating such a forum, and granting journalists access to that forum, it

is unconstitutional for the MDH to exclude a journalist based upon his or her viewpoint.

54. Upon receiving Mr. Johnson’s questions, Mr. Schommer, under the

direction of Ms. Malcolm, flagged them for future discussion with the Governor’s staff,

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and then, in retaliation for Mr. Johnson’s question, chose to prevent him from accessing

the daily briefing conference line, preventing him from asking questions of those State

officials presenting. Such an exclusion would prevent a person of ordinary firmness from

participating in the call.

55. To the extent that the MDH has a policy governing access to the MDH

Conference Line, this policy was created by Ms. Malcolm and Mr. Schommer for the

purpose of excluding Mr. Johnson from the MDH Conference line due to his viewpoint.

56. In the alternative, to the extent that such a policy exists, Ms. Malcolm and

Mr. Johnson selectively enforced the policy against Mr. Johnson for the purpose of

excluding him from the MDH Conference Line, based on his viewpoint.

57. The Defendants’ decision to exclude Mr. Johnson’s access to the MDH

Conference Line is a form of content and viewpoint-based discrimination meant to punish

Mr. Johnson for asking question that exposed possible flaws in the strategy MDH has

employed in responding to the COVID-19 crisis.

58. Defendants’ content and viewpoint-based exclusion of Mr. Johnson from

the MDH Conference Line violated Mr. Johnson’s clearly established constitutional

rights, and a reasonable official in Ms. Malcolm’s or Mr. Schommer’s position would

have known that the exclusion of Mr. Johnson was unlawful and a violation of his First

Amendment rights.

59. As a result of Defendants’ actions, Mr. Johnson has suffered and continues

to suffer irreparable harm. Not only has Mr. Johnson been unable to ask questions of the

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MDH panelists live, but MDH staff have refused to respond to his questions following

his exclusion from the MDH Conference Line.

60. Defendants’ defamatory statements to a third party reporter for publication

and exclusion of Mr. Johnson have also caused him unliquidated and intangible damages

in an amount exceeding $50,000 impairing his ability to report and comment on the

information otherwise made available by MDH.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that the Court enter each of the

following forms of relief:

A. Immediately restoring Mr. Johnson’s access to the MDH Conference Line so

that Mr. Johnson may continue to report on the MDH daily briefings and

perform his job as a journalist;

B. A declaration that the revocation of Mr. Johnson’s access to the MDH

Conference Line was unconstitutional, in violation of the First Amendment;

C. Injunctive relief prohibiting Ms. Malcolm and Mr. Schommer from excluding

Mr. Johnson from the MDH Conference Line;

D. Damages against Ms. Malcolm and Mr. Schommer in their individual

capacities in excess of $50,000 in an amount to be determined at trial; and

E. An order granting Plaintiff costs, fees, and disbursements incurred in

connection with these proceedings and such further relief as this Court deems

just and proper.

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JURY DEMAND

Plaintiff hereby demands a jury trial.

Dated: June 8, 2020 DORSEY & WHITNEY LLP

By s/ Theresa M. Bevilacqua _________

Theresa M. Bevilacqua (#031500X)
bevilacqua.theresa@dorsey.com
Ian Blodger (#0398254)
blodger.ian@dorsey.com
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402
Telephone: (612) 340-2600
Facsimile: (612) 340-2868

Attorneys for Plaintiff Scott W. Johnson

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