Let Them Play MN - Amended Complaint Against Gov. Tim Walz

CASE 0:21-cv-00079-ECT-DTS Doc.
45 Filed 04/16/21 Page 1 of 50
UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA
)
Let Them Play MN, Jane Doe 1, both ) Case No. 21-00079 (ECT/DTS)
individually and as parent and guardian of )
Jane Doe 2 and John Moe 3, minors, John )
Moe 4, Jane Doe 5, John Moe 6, as parent )
and guardian of John Moe 7, and Jane Doe )
8, minors, Jane Doe 10, and John Moe 11. )
)
Plaintiffs, )
) AMENDED COMPLAINT
vs. )
)
Governor Tim Walz, in his official )
capacity, Attorney General Keith Ellison, )
in his official capacity, Commissioner Jan )
Malcolm, in her official capacity, and )
Minnesota Department of Health, )
)
Defendants. )
)
Plaintiffs for their Amended Complaint against Defendants state and allege:
INTRODUCTION
1. Since at least October 2020, Governor Tim Walz and Commissioner Jan
Malcolm have attempted to frame Minnesota’s young people to distract from their own
failed response to COVID-19. Seven months into the pandemic, they remained unable to
address the tragic toll of COVID in Minnesota’s nursing homes and long-term care
facilities (“LTC”). Governor Walz and Commissioner Malcolm knew they were
responsible for failed policies, including moving COVID patients from hospitals to nursing
1
CASE 0:21-cv-00079-ECT-DTS Doc. 45 Filed 04/16/21 Page 2 of 50
homes while they remained infectious and inadequately educating workers who they knew
were responsible for significant spread.
2. After a failed promise to deliver a “moonshot” saving the elderly, Governor
Walz’s settled for throwing our remaining vulnerable—Minnesota’s kids—under the bus.
3. Governor Walz, his staff, Commissioner Malcolm, Kris Ehresmann, and
others engaged in a long-term strategy to find a scapegoat by falsely blaming kids for
COVID’s spread and deaths. This plan culminated in Executive Order 20-99—announced
on November 18, 2020—through which he banned and blamed youth sports for the spread
of COVID without any support in science, data, or evidence.
4. That same day, one of Governor Walz’s political consultants described his
plan in an email:
Governor is wanting LTC to be thinking about being proactive and

aggressive as LTC deaths going back up. Sounds like Commissioner
[Malcolm] and [MDH Assistant Commissioner Erin Campbell] are
tracking some data to pull. But for some messaging . . . .
***
- As [people] push back on youth sports and [sic] whether they really need
to be ended --> we need to more explicitly tie youth sports to LTC. People
are going to youth sports, sitting in bleachers, eating popcorn and talking
with people around then, cheering, then maybe stopping at a restaurant or
bar on way home, then going to jobs in LTC the following day. The
spread and deaths in LTC can be traced back to youth sports and some of
these social settings.
(emphasis added).
5. This was, of course, a complete fabrication. Neither kids, nor athletes, nor
spectators in sports (to the extent any were allowed in 2020) caused deaths from COVID,
the spread of the virus, or any other issues Governor Walz tried to lay at young people’s
2
feet in 2020 had any evidence in fact, or data, or logic. Each of the Defendants Governor
Walz, Commissioner Malcolm, and Attorney General Keith Ellison knows the truth. But
this is politics, a dangerous game for the young and vulnerable.
6. This lawsuit is intended to stop Governor Walz and other Defendants from
inflicting further harm on young people based on pretense and falsehoods. Each of the
Plaintiffs is participating in this lawsuit to help all of Minnesota’s young people who have
been unfairly blamed, defamed, quarantined, and cancelled.
DEFENDANTS
7. Defendant Governor Tim Walz is a party in his official capacity as Governor
of the State of Minnesota. Governor Walz issued the executive orders at issue in this action.
Governor Walz has authority to control the rules, guidance, enforcement actions, and in
fact does so direct, the Minnesota Department of Health (“MDH”).
8. Governor Walz, together with MDH Commissioner Malcolm, schemed with
political advisors to falsely accuse youth sports, athletes, and spectators of causing deaths
in LTC to distract from his errors and to justify fabricated restrictions on young people that
he knew were unnecessary.
9. Attorney General Keith Ellison is a party in his official capacity as Attorney
General of the State of Minnesota. Attorney General Ellison is tasked with and has enforced
Governor Walz’s executive orders at issue in this action, including to close down facilities
at which youth athletes play or exercise, or desire to do so, without the harm caused by
face coverings. Attorney General Ellison’s office promulgated the declarations and
affidavits of Richard Danila described below.
3
10. MDH has promulgated “guidance” purportedly having the force of law
pursuant to Governor Walz’s executive orders and enforced such orders and its own
guidance. MDH also facilitated and designed Defendants’ unlawful process to generate
false and misleading data in a manner designed to support political decisions predetermined
by the Governor and or other political leaders who have no training in medicine or public
health.
11. Commissioner Jan Malcolm is a party in her official capacity as
Commissioner of MDH. Commissioner Malcolm is tasked with and has enforced Governor
Walz’s executive orders at issue in this action. She collaborated with Governor Walz,
Ehresmann, Assistant Commissioner Dan Huff, Deputy Commissioner Kelly, and other
MDH leaders to advance the Governor’s scheme.
12. All acts of Defendants and their officers, agents, servants, employees, or
persons acting at their behest or direction set forth herein, were done and are continuing to
be done under the color and pretense of state law and pursuant to Defendants’ policies,
practices and/or customs even if many of their acts appear to have been taken for their
personal or political benefit.
PLAINTIFFS
13. Each of the Plaintiffs described by a pseudonym is (or for minors, their
parent/guardian is) concerned regarding the risk of reprisal to themselves or their family
members from the unnecessary and unfair politization of COVID and the risk of reprisal
for participating in this suit. Those listed by name have already spoken publicly regarding
the issues in this suit.
4
14. Plaintiff Let Them Play MN (“LTP”) is a Minnesota non-profit corporation.
LTP was founded as an unincorporated association in August 2020 by its current Executive
Director Dawn Gillman. As a mom of high school athletes, Ms. Gillman founded LTP
because she believed it was unfair to prohibit certain sports from playing when, in fact, it
was safe to let them play. Over the eight months since its founding, LTP has organized
more than 25,000 supporters, including parents, coaches, and fans from across all areas of
Minnesota who understand the value of participation in youth sports and activities.
15. LTP exists to overcome obstacles and enable Minnesota youth to safely
participate in sports and other healthy activities. LTP promotes youth participation in
athletics and activities by educating and providing resources for parents, educators,
coaches, and the public related to: (1) the benefits of youth activities for physical and
mental health; (2) accurate scientific evidence regarding youth participation in activities;
(3) best practices for safe participation; and (4) overcoming potential obstacles to
participation.
16. Plaintiff Jane Doe 1 (“Doe 1”) has coached high school sports for five years.
She has coached cross country, Nordic skiing, and track and field for a high school in the
Twin Cities Metro Area. She had planned to coach all three sports during the 2020-2021
school year. During the fall 2020 cross country season, to Doe 1’s knowledge, none of her
athletes, no other coaches, and none of her opponents contracted the 2019 coronavirus
commonly described as COVID. No other teams had to cancel competitions or had any
need to quarantine. During the cross-country season, Doe 1 found it easy for her runners to
maintain social distancing and to safely participate.
5
17. After EO 20-99 (numbered Minnesota executive orders are cited as “EO”
followed by their respective number), created unfounded restrictions for coaches and youth
athletes even as Governor Walz encouraged Minnesotans to engage in the same outdoor
activities athletes and coaches hoped to undertake (including skiing).
18. Because of EO 20-99 and EO 20-103 (and successor EO 21-01), Doe 1 has
temporarily moved to another state to allow her son to practice his sport without harmful
and unnecessary restrictions imposed by Defendants. Doe 1 has lost income from being
forced to give up coaching Nordic Skiing and not coaching track and field because of her
son’s need to temporarily relocate and because she could not, in good conscience, require
Nordic skiers and track and field athletes to wear masks while practicing outdoors. Doing
so would have been completely unsafe and would have subjected Doe 1 to liability for
harming her athletes.
19. Plaintiff Jane Doe 2 is a junior at a public high school in the Twin Cities
Metro Area. She began lifting weights when she was 11 and participates in her school’s
Olympic weightlifting club. She loves the sport and has been state champion for three
years. She has placed in the top 3 in national competition. Doe 2 wants to continue lifting
in college and sees the Olympics as a possibility, if she continues to be allowed to train
without inhibiting restrictions.
20. Like other high school kids, Doe 2 spends time with friends her age when
she is not busy with school and athletics. Doe 2 has noticed that shutting down school and
sports has only given kids her age more free time that they use to spend together, hanging
6
out or shopping. Kids her age are bored and tired of being isolated during a long, difficult
year.
21. In Doe 2’s experience, high school kids are not overly concerned about
COVID because there is no risk to them. To be clear, Doe 2 socially distances and avoids
crowds like retail shopping even though she is allowed to shop. However, masks are
completely unnecessary when weight training. For Doe 2’s events, others were required to
stand back for safety reasons. Doe 2 is concerned that her mask may be caught on
equipment while training and could cause an injury. Masks make it harder to breathe when
exercising and regularly fall down when working out. Doe 2 was concerned about her
lifting from 180 to 200 lbs. over her head with the reduced breathing due to masks and the
concern of passing out during the lift.
22. This spring Doe 2 is competing in track and is concerned about passing out
while training if required to wear a mask as required in Minnesota. The out-of-state high
school where Doe 2 is training and competing does not require masks for outdoor sports.
23. Plaintiff John Moe 3 (“Moe 3”) is a high school swimmer who has competed
and would be practicing and competing on the swim team of a public high school in the
Twin Cities Metro area if EO 20-99 had not shut down swimming in Minnesota and EO
20-103 (and its successor EO 21-01) did not mandate masks when training out of the pool.
Earlier in 2020, pools were closed and Moe 3 had to swim in a lake. Now, to train in
Minnesota, Moe 3 would be required to immediately put on a mask after getting out of a
pool from a workout or race. Moe 3 does not want to do so because by definition he would
7
be breathing heavily through a soaking wet mask. Moe 3 does not want to experience that
risk.
24. Moe 3 was at the top of his age group in his best swimming event, heading
into the state meet in March 2020. However, that meet was shut down when swimmers
were already at the venue. Swimming was again shut down by EO 20-99. Because of this
and because of continuing irrational requirements, including masks, Moe 3 travelled to
another state where youth athletes are allowed to play/swim and where Moe 3 has a relative.
Even though he was sleeping on the floor of an apartment, Moe 3 is thankful to have had
the option to train without wearing a mask, while being allowed to change and dry off at
the pool instead of walking to a car after practice in Minnesota soaking wet. Many kids
could not travel and kids in Minnesota were not allowed to train during the fall of 2020 at
all even though swimming is safe and thousands of swimmers safely practiced and
competed in 2020 once they were allowed to do so in late summer and the fall.
25. Plaintiff John Moe 4 is a high school senior and lives in Central Minnesota.
He is captain of his high school’s basketball team. Moe 4 missed part of the football season
in the fall because the Minnesota State High School League (“MSHSL”)
cancelled/postponed football (along with volleyball) as requested or temporarily required
by Governor Walz and/or MDH. The end of the season was then shortened when Governor
Walz issued EO 20-99. Moe 4 also plays baseball.
26. Moe 4 found practicing and playing basketball with masks to be difficult and
demoralizing. He knows players who were injured because of wearing masks. Moe 4 also
has serious concerns about wearing a mask/face covering while playing baseball based on
8
his negative experiences wearing one while playing basketball. To Moe 4, wearing a mask
while playing basketball or baseball feels like having a sweaty sock over your mouth and
nose, effectively choking you. Moe 4 cannot catch his breath with a mask covering his
mouth and nose. He and other players must regularly remove or move their masks to
breathe. Masks become wet with sweat and saliva almost immediately when playing or
practicing, inhibiting players’ ability to breathe. Because of this, players continually move
and touch their wet masks to enable breathing.
27. Meanwhile, Moe 4 has observed that high school age young people/kids who
were playing sports while he was playing football in the fall did not just stay home alone.
It is a depressing year and kids feel a need to get together. All parents allow their kids to
be with friends to prevent them from being too depressed. At Moe 4’s first football game
of the shortened 2020 season, both teams took a knee and had a moment of silence because
of a player’s suicide during the summer of 2020. When high school kids play sports (at
least when they play without masks), kids have a safe and healthy outlet to move and to be
social, safely. If high school kids are not able to play, they play Xbox in their bedroom or
basement with their friends present or engage in other activities, like driving around with
a group of friends, regardless of what Governor Walz has ordered in any given week or
month. Minnesota kids have been forced to stay alone for so long, they cannot continue.
28. Plaintiff Jane Doe 5 (“Doe 5”) is a youth archery coach. Archery is a safe
and healthy activity in which youth participants learn about discipline, goal setting, and
problem solving. Doe 5 is involved in several archery organizations and traveled outside
of Minnesota several times in 2020 and 2021. To Doe 5’s knowledge, no one associated
9
with these groups or competitions has contracted COVID and the virus has not otherwise
been transmitted through archery. Throughout 2020 and in 2021 to date, archery
organizations have adopted and carefully followed protocols that allow the sport to
continue without any difficulty or danger. Yet, EO 20-99 banned kids from practicing or
competing in archery with or without protocols.
29. As a result of Defendants’ actions, Minnesota was required to cancel multiple
archery events earlier in 2020 and again in December when Governor Walz banned sports
and activities. Meanwhile neighboring states were able to safely hold these events. This
prevented Minnesota and Minnesota archery organization from realizing the economic
benefit of holding these events. At least one youth archery program that has not been able
to practice at all because of public (county) owned facilities that would not allow archery.
30. Doe 5’s daughter is on the USA National Archery Team and hopes to
participate in collegiate archery programs. She was only able to achieve this success
because Doe 5’s family had the means to travel out of state to qualifying events allowed in
other states. If her family had not been able to travel, Doe 5’s daughter would have lost her
entire collegiate archery future.
31. In Doe 5’s experience, masks are unsafe and make it impossible to participate
in archery. Doe 5 spent significant time coaching and participating in archery in 2020, both
in Minnesota and in other states. She is aware of no data and has not heard of or experienced
any spread of COVID from participating or competing in archery. Mask use in archery is
clearly unsafe. A bowstring comes in contact with a shooters’ face when shooting an arrow,
10
creating an unacceptable risk that a string or arrow could catch a mask causing serious
injury.
32. Plaintiff John Moe 7 (“Moe 7”) is seven years old and lives with his parents
in the Twin Cities metro area. Moe 7 plays hockey and has not yet limited himself to any
specific position in hockey. Moe 7 is currently homeschooling due to restrictions on his
public school. Hockey is Moe 7’s outlet for safe and healthy exercise and fun. His parents
believe strongly in the benefits that sports provide for Moe 7 and his sister Doe 8. Despite
this, Moe 7’s parents may withdraw him from hockey due to Governor Walz’s mask
mandate/face shield and other restrictions on hockey.
33. Moe 7’s parents are particularly concerned about the mask/face shield
mandate due to its restrictions on Moe 7’s breathing and limitations on his visibility. The
intensity of skating and playing hockey causes masks to quickly become saturated in sweat.
Moe 7’s father is a coach and spent much of Moe 7’s team’s first practice after the total
ban on sports was lifted adjusting masks in ways that caused Moe 7’s father to be much
closer to team members’ breathing than ever before. Many kids on Moe 7’s team are too
young to strap their helmets alone; therefore, they need assistance. Having the coaches
assist with masks increases the likelihood of spreading COVID.
34. Moe 7’s parents purchased an expensive clear face shield as allowed under
guidance announced by MDH. This preferable to other face coverings, but still decreases
Moe 7’s ability to breath, particularly with any air holes covered. Covering the air holes
decreases airflow which causes the shield to fog up, decreasing visibility and making Moe
7 less safe. And, of course, Moe 7’s parents and other parents already incur significant
11
expenses for their kids to play hockey. It seems wrong to Moe 7’s parents that they are
required to incur another expense for a face shield that does not make anyone safer from
COVID, but makes Moe 7 more likely to fall or collide with another player due to the lack
of visibility.
35. Plaintiff Jane Doe 8 (“Doe 8”) is 9 years old and lives with her parents in the
Twin Cities metro area. She plays hockey year-round. Doe 8 plays goalie. She learned to
skate when she was four and hockey became her passion.
36. As a goalie, Doe 8’s position in hockey is normally distanced from other
players and she is never within 6 feet of any given player for more than 15 cumulative
minutes across an entire practice or a game. Nonetheless, the Defendants have ordered her
to wear a mask under her goalie helmet. Doe 8 plays a position with a high risk of being
hit in the face with a puck or pushed over by a collision with another player, as a result she
needs to wear a mouthguard and has been required to wear a mouthguard when she has
played hockey.
37. Because of Governor Walz’s order regarding masks, Doe 8’s hockey team
no longer requires Doe 8 to wear a mouthguard. This is because she could not breath with
a mouthguard and a mask. Wearing a mask under a goalie helmet does no good even if Doe
8 were routinely close to other players. During practice, the mask quickly shifts and, with
a goalie catcher and blocker on both hands, there is no way to keep a mask over her mouth
and nose.
38. There is also no way to have a goalie wear a clear mask, even if there were a
clear mask strong enough for a goalie, closing off the air holes makes the mask fog up
12
causing serious danger from a lack of visibility. Meanwhile, if a cloth mask is on properly
Doe 8’s downward peripheral vision is greatly reduced. With reduced visibility and no
mouthguard, it seems crazy to Doe 8’s parents that Governor Walz apparently believes it
is safe to have pucks launched at Doe 8’s head. Doe 8 and her parents want Doe 8 to play,
particularly given the likelihood Governor Walz will shut down sports again or continue to
move the goalposts on kids, again, but it is hard to say whether the tradeoffs are worth it
for Doe 8 and her parents. Doe 9 is concerned for her safety because of the harms caused
by wearing masks while playing goalie.
39. Plaintiff Jane Doe 10 (“Doe 10”) runs cross country in the fall and is a
distance runner in track and field in the spring for a high school in the Twin Cities
metropolitan area. Defendants caused the MSHSL to cancel the State Cross Country
Championship meet in 2020. While Doe 10 should have an opportunity to run track in
college, Doe 10’s prospects to continue at the college level have been significantly limited
because there was no high school track and field season in 2020 and because MDH, through
the MSHSL, has mandated restrictions on high school runners that MDH and MSHSL
know to be unnecessary.
40. Plaintiff John Moe 11 (“Moe 11”) is a senior at Mankato West High School,
the school at which Governor Walz taught and was an assistant coach. Moe 11 is an elite
high school swimmer and has spent years training as a swimmer. The 2021 Minnesota State
High School Championship Swim Meet (the “State Meet”) would have been the
culmination of Moe 11’s high school swimming career. Moe 11 was not allowed to swim
in the State Meet because of Defendants’ unlawful conduct.
13
41. Governor Walz and MDH have imposed quarantines on youth athletes by
their regulation of public schools. Acting through the MSHSL and Mankato West,
Defendants imposed a 14-day quarantine period on Moe 11. They would not allow Moe 11
to swim in the State Meet on March 20, 2021, even though Moe 11 had twice tested
negative for COVID and March 20 fell eleven days after his alleged exposure to COVID.
42. Meanwhile, at the same time as Governor Walz and MDH required Moe 11
to quarantine for fourteen days, Governor Walz chose to only quarantine for ten days. Had
Governor Walz allowed Moe 11 to quarantine for the same ten-day period he chose for
himself, Moe 11 would have been allowed to swim in the State Meet, the last high school
swim meet of Moe 11’s life.
JURISDICTION AND VENUE
43. This Court has personal jurisdiction over Defendants.
44. The Court has subject matter jurisdiction over this case under 28 U.S.C.
§ 1331, as this action arises under: (a) the Fourteenth Amendment to the United States
Constitution; (b) 28 U.S.C. § 1343(a)(3), as it is brought to redress deprivations, under
color of state law, of rights, privileges, and immunities secured by the United States
Constitution; (c) 42 U.S.C. § 1983, which provides a cause of action for the protection of
civil rights; (d) 42 U.S.C. § 1988(b), as it seeks an award of attorneys’ fees; (e) 28 U.S.C.
§ 2201(a), as it seeks to secure declaratory relief; and (f) under 28 U.S.C. § 2202, as it
seeks to secure permanent injunctive relief and damages. This Court has supplemental
subject matter jurisdiction over the state law claims in this case under 28 U.S.C. § 1367.
14
45. Venue is proper in the United States District Court for the District of
Minnesota under 28 U.S.C. § 1391(b), as all or a substantial part of the events giving rise
to the claims occurred within the District.
MDH’S INITIAL, HAPHAZARD DATA COLLECTION

AND REPORTING REGARDING COVID
46. Throughout 2020, Governor Walz and MDH have attempted to gather and
report information related alleged COVID cases and alleged “outbreaks” in Minnesota.
However, their own data, evidence, and admissions demonstrate that their data collection
was neither candid nor scientifically sound.
47. Discrepancies in MDH actions were apparent from at least June 2020. For
example, in an internal MDH “June-July Restaurant Outbreak Summary” dated July 28,
MDH analyzed 4,543 cases reported between June 2 and July 27 who reported visiting a
restaurant before testing positive. While MDH labeled these cases to be “restaurant
exposure,” MDH’s internal review found each case to have a more “likely route of
exposure” to COVID than a restaurant, including travelling, working in healthcare,
working in a nursing home, or other setting unrelated to eating at a restaurant.
48. In the same document, MDH summarized alleged “case exposure data” for
each of the more than 23,000 cases reported to MDH for which an individual had been
interviewed by MDH finding:
15
EXPOSURE TOTAL
June July
TYPE REPORTED=YES
Airport 227 541 768
Workplace 4432 5200 9632
Restaurants 1346 3279 4625
Salon 364 784 1148
Youth Camp 19 114 133
School 241 360 601
Events 941 2196 3137
Church 95 191 286
Festival 2 14 16
Sporting
39 186 225
Event
Family
gathering/party 279 1004 1283
Concert 7 31 38
Wedding 23 104 127
Funeral 71 143 214
Block Party 9 23 32
Other 419 608 1027
49. MDH contradicted these findings in a contemporaneous public document
reporting, but recharacterizing, the same data in its public weekly report dated July 30,
2020. In the recharacterized data, MDH divided the same exposure information between
different categories without attributing any to its preferred “workplace” category. even
though it accounted for nearly half of all cases.
50. Governor Walz and MDH knew since the beginning of COVID that retail
was a significant source of COVID spread. MDH had found—before it stopped discussing
16
workplace numbers—that retail workers accounted for the largest, or one of the largest,
sources of workplace COVID cases and outbreaks outside of healthcare. However, this fact
was intentionally obscured from public view.
51. Governor Walz and MDH are aware that numerous retail workers have
contracted COVID from customers and that retail customers have contracted COVID from
other customers and from retail workers. However, Governor Walz and MDH have
intentionally chosen to avoid collecting data regarding COVID cases and outbreaks in retail
settings.
52. Governor Walz has used MDH’s decision to avoid collecting data in retail
settings for political advantage. For example, on October 26, 2020, Governor Walz
informed reporters, “We’re not seeing the massive spread in retail settings. So it doesn’t
necessarily look like there would be a need [to take any limiting action related to retail].”
53. Similarly, to justify EO 20-99, Governor Walz stated “we see relatively
fewer outbreaks in retail settings, which generally involve brief, masked, transient
interactions that pose lower transmission risk.” This statement was intended to falsely
imply that MDH has looked for retail outbreaks and has data regarding retail. MDH has
not collected data or otherwise looked for retail outbreaks. So, of course, Governor Walz
and MDH could not “see” retail outbreaks.
54. Governor Walz and MDH have applied contact-tracing and epidemiological
labels and categories in a disingenuous and intentionally misleading manner to mislead,
rather than researching manner. This scheme is obviously fraudulent as it has been applied
youth sports and youth athletes.
17
GOVERNOR WALZ AND MDH’S POLITICALLY

MOTIVATED EFFORT TO CREATE A FALSE APPEARANCE
THAT YOUTH SPORTS ARE DANGEROUS
55. Beginning in March 2020, Governor Walz and MDH promised Minnesota
that they could easily control COVID case numbers with the turn of a dial. When this
proved impossible, Governor Walz and MDH perpetrated a scheme to demonstrate an
appearance of control, and a façade of “science,” by deceptively collecting and reporting
data regarding alleged sources and spread of COVID that had not, in fact, contributed to
its seriousness or spread.
56. Young people and youth sports were particularly victimized by Defendants’
scheme to falsely portray them as a problem. MDH manufactured an appearance of
fulfilling Governor Walz’s promise by creating a political scapegoat on which the
Governor could lay blame for Minnesota’s rising cases without taking responsibility for
his far more consequential missteps related to LTC.
57. In Governor Walz and MDH leaders receive and review Minnesota case data
before it is reported to the public. While they have not revealed this process to the public,
Commissioner Malcolm and other MDH leaders’ communications refer to a “lag period”
of a week or more between when MDH receives and analyzes data and when it is reported
to the public.
58. By October 2020, Governor Walz and MDH were aware that COVID cases
were increasing and would likely continue to a peak as they had in other geographies.
Governor Walz and his staff communicated with MDH regarding potential responses to
the increase in COVID cases.
18
59. On October 22, Governor Walz’s Chief of Staff asked Commissioner
Malcolm to provide a “a summary sheet that breaks down where transmission is happening,
where we know it (e.g., percentage of cases in various settings), with more detailed
breakdowns . . . ?”
60. After reviewing information provided by Commissioner Malcolm, the Chief
of Staff responded: “these case numbers are small in comparison to the overall case
numbers, I assume the conclusion here is that we just don’t know where most
transmission is happening?” (emphasis added).
61. Commissioner Malcolm did not respond to the Governor’s Chief of Staff’s
question. Instead, she emailed Kris Ehresmann and MDH Assistant Commissioner
Margaret Kelly, instructing them to use “creative thinking” and find a
way to estimate total impact from generations of transmission and not just
the primary case, as people look at the primary case numbers and think
those are small impacts that don’t justify the dial backs we propose. See
COS questions below.
(emphasis added).
62. Commissioner Malcolm, Ehresmann, and other MDH personnel knew that
“generations of transmission” may result from any transmission of COVID. However,
pursuant to Malcolm’s direction, Ehresmann and other MDH personnel intentionally
adopted misleading labels and cited deceptive statistics to create a false appearance of risk
associated with certain activities, particularly youth sports.
63. Throughout much of 2020, MDH had collected information regarding
individuals who reported playing or attending sports during the fourteen days before testing
19
positive for COVID. MDH documents show this data included disclaimers and admitted
that this date did not mean there was any connection between playing or attending sports
and the individuals’ exposure to COVID.
64. By mid-October MDH investigation had become overwhelmed by the
increase in cases across the state. Because of their lack of “capacity, contact tracing for
sports related cases [was] typically being done by the school nurse and/or coach” who had
no training or expertise in contact tracing.
65. Lacking data or science, Ehresmann responded to Commissioner Malcolm’s
request for “creative thinking.” MDH did not change its methodology or identify any data
showing youth sports was actually a source of spread (the agency had none). Instead, MDH
began to discuss youth sports quarantines and repeat unverified anecdotes.
66. Four days later, at an October 26, 2020, briefing Ehresmann presented
“sports-related cases” and alleged “outbreaks” as if they were indicative of danger in
sports. Her comments included:
So just looking at our sports-related cases overall, we have had 3,410

cases associated with sports. And focusing on the high school athlete age,
593 cases. If you take that down to the middle school, we add 309 cases.
And . . . just to put it in context with that 3,410 that included over 7,000
household contacts who needed to be isolated.
67. Ehresmann failed to mention that “sports-related” is a misleading label.
According to MDH, the numbers Ehresmann described were individuals who tested
positive for COVID and “who had reported playing/attending sports events either during
their incubation period (in the 14 days prior to their illness) or during their infectious
period.” However, MDH knew that this statistic did not indicate these individuals “were
20
exposed to COVID-19 during sports activities,” and more importantly, they knew that they
did not know whether the transmission occurred while playing the sport.
68. Moreover, MDH has admitted that COVID isolation and quarantines should
be applied equally to anyone who contracts COVID. As a result, “household contact who
needed to be isolated” would be a similar multiple for COVID associated with any activity.
69. Unlike Ehresmann’ s public comments, MDH epidemiologists who collected
and reported so-called “sports-related” cases and “outbreaks” believed that when reporting
such information, it was important to “make clear we do not know if transmission occurred
during the sports activity (either practice or games).”
70. Moreover, MDH had not (and has not) ever estimated the number of young
people in Minnesota who played sports to determine whether the numbers MDH cited
indicated that spots were safe or unsafe. In this lawsuit, MDH conceded that there are at
least half a million young people in Minnesota who regularly participate in sports and
similar activities.
71. MDH did not realize that if roughly half of the young people in Minnesota
play sports, their own data demonstrated that playing sports without masks prevented more
spread from COVID than canceling sports and wearing a mask.
72. Instead of analyzing their own data and methodology, Commissioner
Malcolm, Ehresmann, and MDH staff had decided to make sports their scapegoat by
repeating the baseless allegation that sports were the cause of distance learning,
quarantines, and other harms inflicted solely by Governor Walz’s, MDH’s, and Minnesota
Department of Education’s (“MDE”) policy decisions.
21
73. In fact, Governor Walz and MDE had dictated whether and when schools
should be in distance learning and MDH had no data indicating that sports was a major
cause of school shutdowns. Governor Walz and MDH knew that private school students
had played sports, just like public schools, but private schools had not moved to distance
learning.
74. In late October, MDH epidemiologists who were most familiar with case
information compiled by the agency were asked to draft a proposal for Governor Walz of
a “Phase 2” or “dial back” in response to rising cases. MDH epidemiologists October 27,
2020, draft proposal for “youth sports” proposed that practices continue but games and
tournaments should be canceled during “Phase 2.” MDH also anticipated that gyms/fitness
studies, restaurants and bars could remain open.
75. MDH’s “Phase 2” proposal was finalized by October 29 for a video
conference “meeting with principals” arranged by Governor Walz.
76. Commissioner Malcolm was the only representative of MDH at this meeting.
Malcolm’s LinkedIn profile states that she has a “Bachelor’s Degree, Pre-Medicine/Pre-
Medical Studies; psychology;philosophy [sic].” Commissioner Malcolm is not an
epidemiologist, medical doctor, and has no other credentials in the field of public health.
77. Commissioner Malcolm’s presentation at the Governor’s “Principals
Meeting” was similar to MDH staff’s “Phase 2” proposal. She proposed that “Youth
athletics” should either have “Practice only – no games” or a “Two-week pause on youth
sports.”
22
78. Commissioner Malcolm did not present any data related to alleged youth
sports cases or outbreaks. Her presentation included the following chart summarizing
“Outbreaks by Setting by Month:”
79. Actual data was apparently unimportant to the “Principals Meeting” and
Commissioner Malcolm seems to have had no familiarity with her agency’s data. While
Malcolm planned to, and apparently did discuss, banning youth sports games and practices,
she was unaware that the category of “Sporting Event” listed in her presentation does not
include data MDH alleges relates to youth sports.
80. Similarly, by October 29, 2020, more than 142,000 Minnesotans had tested
positive for COVID. Yet Commissioner Malcolm’s presentation only considered limiting
a subset of eight activities that MDH believed represented a mere 1.4% of all cases in
Minnesota.
81. After this meeting, Governor Walz planned what he would do in regard to
sports. MDH prepared information, talking points and summaries for the Governor and
23
MDH personnel related to sports that included anecdotal opinions from individuals who
were angry about youth sports.
82. MDH summaries did not quote messages from the thousands of parents and
athletes who desired to continue to play, who were upset about absurd and unfair quarantine
rules applied by MDH, and who hoped the Governor would take action to relieve the mental
health crisis among young people caused by cancellations and the Governor’s drastically
restrictive orders.
83. In the end, Governor Walz made his decision to ban youth sports on or
shortly after reviewing a November 13, 2020, presentation by Ehresmann that included this
chart:
84. Governor Walz and MDH chose to ignore their own data regarding COVID
cases reported among all Minnesota young people even though this data was immediately
available to them and reported on a weekly basis by MDH.
24
85. MDH data showed that young people who do not play sports contracted
COVID far more often than young people who play sports. As a result, young people who
did not play sports experienced a far more dramatic spike in COVID cases during the fall
of 2020 than young people who did play sports:
Date of latest data shown on

Ehresmann’s Nov. 13 chart
86. At the time Governor Walz decided to cancel youth sports, it was obvious to
MDH and Governor Walz that young people who do not play sports get COVID (and
therefore would transmit COVID) far more frequently than young people who play sports.
It simply did not matter.
87. In the fall of 2020, a University of Wisconsin study evaluated athletes at 207
schools in Wisconsin that played fall sports in September 2020. Those schools had more
than 30,000 athletes, more than 16,000 practices and more than 4,000 games. (Andrew
25
Watson, MD, COVID-19 in Wisconsin High School Athletics: Study Summary, available at
https://www.wiaawi.org/Portals/0/PDF/Health/Covid/WI_HS_SportCOVID-19.pdf.)
88. Of the 209 athletes who knew where they contracted the virus, only one case
was attributed to participation in sports. Id. at 2. The vast majority of cases were contacted
in their household (55.0%), or in their community (not sport or school) (40.7%). (Id. at 2.)
The study concluded that “participation in sports is not associated with an increased risk
of COVID-19 among Wisconsin high school student-athletes.” Id. at 3. MDH was aware
of this study, but did not circulate it among its staff or review its results.
89. In reality, Governor Walz’s ban on youth sports through EO 20-99 was
political theater, window dressing intended to distract from the Governor’s shortcomings.
In carrying out Commissioner Malcolm and Assistant Commissioner Campbell’s mission
to find “data to pull” froms MDH records, it is clear that MDH Assistant Commissioner
Huff, MDH epidemiologists working on youth sports cases, and other MDH personnel
assisted Governor Walz and Commissioner Malcolm’s scheme to mislead the public and
defame young athletes.
90. Governor Walz announced this shutdown of sports and other activities on
November 18, 2020, to carry out this scheme. The Governor’s November 18 tweet, was
sadly ironic, at least for the truth and Minnesota’s kids, stating “throughout this pandemic,
we’ve followed the data on who, when, and where the virus is spreading.”
91. Governor Walz and MDH knew (or could have known) that cases among
Minnesota’s youth athletes had been falling since the week of November 1 (or earlier
because of the MDH lag period).
26
92. For its part, MDH epidemiologists were also well aware of the shortcomings
of their data. Just two days earlier, on November 16, 2020, a sports facility operator asked
one of the two leaders of MDH’s data collection efforts related to sports:
Do you have a resource or could briefly share what the largest 3‐5 drivers
of spread are in the youth sports world? I realize I could be making
policies that sound good but aren’t rooted in the data and want to make
sure that I verify with the experts as yourself.
93. MDH’s epidemiologist responded: “You raise an interesting question . . . At
this point, there isn’t much.” (emphasis added).
94. In sum, MDH knew (and Governor Walz knew or should have known) before
he shut down youth sports that he was forcing young people who engaged in a safe and
healthy activity that decreased the spread of COVID to stop. And he was throwing these
young people back into the general population of kids who were more than twice as likely
to contract and spread COVID.
95. Meanwhile, Governor Walz and MDH did not even collect data on numerous
categories of COVID spread that were likely contributed far more to the spread of COVID
than youth sports, such as retail, numerous non-essential businesses, and other activities.
RICHARD DANILA’S MISREPRESENTATIONS TO

THIS COURT AND TO MINNESOTA STATE COURTS
96. As described above, throughout 2020, Governor Walz, Commissioner
Malcolm, and Ehresmann repeatedly quoted numbers and statistics allegedly related to
COVID “outbreaks” in various types of locations and various activities, including youth
sports.
27
97. In fact, MDH has already admitted that Governor Walz, Commissioner
Malcolm, and Ehresmann chose to apply an inaccurate definition of “outbreak” to youth
sports, restaurants, and gyms/fitness centers in a manner that made these activities seem
unsafe, when in fact MDH knew these activities are safe.
98. The Centers for Disease Control and Prevention (“CDC”) and MDH
recognize a shared understanding of the term “outbreak” based on decades of scientific
research. MDH has articulated this general definition of “outbreak” as “multiple cases of
illness related by time and place in which an epidemiologic investigation suggests person-
to-person transmission or contamination occurred.”
99. MDH’s Deputy State Epidemiologist and Epidemiology Program Manager
Richard Danila has been a scientist for 36 years. He also teaches at the University of
Minnesota School of Public Health. Danila reports to Ehresmann at MDH.
100. In sworn testimony, Danila testified that the definitions used by MDH related
to COVID have been:
(a) For a restaurant (until November 13, 2020): “seven or more COVID-19 cases
from different households that report visiting only the bar/restaurant within
one month;”
(b) For a restaurant (after November 13, 2020): “five or more COVID-19 cases
from different households that report visiting only the bar/restaurant within
one month;”
(c) For a health club/gym: “ seven or more COVID-19 cases from different
households that report visiting the Gym within one month.”
28
101. In this action, seeking to imply sports are unsafe, Danila testified that an
“outbreak indicates potentially extensive transmission within a setting or organization and
refers to an increase in the number of cases of a disease above what is typically expected
for that setting or organization.”
102. Later, when he was deposed, Danila admitted his earlier written testimony
and MDH’s use of the term “outbreak” related to COVID were not scientifically accurate.
103. Danila’s sworn testimony is that a group of cases is referred to as a “cluster”
and a cluster may be revealed to be an “outbreak” or it may simply be “a coincidence.”
According to Danila’s sworn testimony, to find an outbreak requires an investigation
showing that cases are “relat[ed] by time and place that suggests person-to-person
transmission or contamination.” (emphasis added). Danila admitted that cases involving
individuals who were never near each other—such as MDH counts in outbreaks related to
schools, restaurants, and health clubs, should not be counted as the same outbreak.
104. And while MDH offered, and this Court and others relied on Danila’s
testimony regarding MDH’s and Governor Walz’s decision-making.
105. Contrary to his promises in March and April 2020, Governor Walz has not
truthfully informed Minnesotans as to how or why he made the most critical decisions
related to young people and youth sports.
106. In fact, Danila, the high-ranking MDH official who offered sworn testimony
in this case and roughly a dozen others regarding why and on what basis Governor Walz
issued Executive Orders at issue, has now recanted much of his written testimony.
29
107. In the declaration Danila signed and submitted to this Court in February,
Danila testified, under oath, as to why “Governor Walz issued Executive Order 20-99” and
the purpose, basis, and “balancing of priorities” involved in all of Governor Walz’s
executive orders during the pandemic. However, when questioned, under oath, in a
deposition on March 30 and April 8, 2021, Danila admitted that he had no knowledge on
which to base this testimony.
108. Among other admissions, in deposition testimony, Danila admitted he had
no involvement in or knowledge of the decision-making process or basis for Governor
Walz’s restrictions imposed on youth sports or any other mandate or executive order related
to COVID in 2020 or 2021.
109. Danila does not even know who was involved in restrictions on youth sports
other than the fact that only the “Governor’s Office” and Commissioner Malcolm. Danila
testified that “anybody below our commissioner is not involved in making . . . decisions”
related restrictions on sports.
GOVERNOR WALZ AND MDH UNEQUAL TREATMENT OF YOUTH

ATHLETES RELATED TO MASKS AND QUARANTINES
110. Governor Walz and MDH also discriminated and treated youth athletes
unequally in their mandates related to masks and quarantines.
111. EO 20-81, signed in July 2020, mandated that “Minnesotans must wear a
face covering in indoor businesses and indoor public settings, as described in this order and
the related industry guidance, available at the Stay Safe Minnesota website
30
(https://staysafe.mn.gov), as well as any other guidance referenced in this order” EO 20-
81 at § 2.
112. As Governor Walz and MDH changed and granted exemptions to mask
orders, these exemptions were not applied equally. EO 20-81 provides exemptions for
individuals with a medical condition, children five and under, and any adult “at their
workplace when wearing a face covering would create a job hazard for the individual or
others, as determined by local, state or federal regulators or workplace safety and health
standards and guidelines.” EO 20-81 § 8.
113. EO 20-103, issued in late December 2020 (and further ordered in its
successor order EO 21-01), required a more draconian mask rule for some, but not all,
youth athletes, than EO 20-81 had applied to adults at work, stating, “Notwithstanding the
provisions of Executive Order 20-81, face coverings must be worn by all persons at all
times” when exercising or playing sports in a gymnasium, fitness center, recreation center,
indoor sports facility, or similar location where youth sports occur.
114. Sections 10.a and 10.b of EO 20-81, abrogated by EO 20-103, had exempted
face coverings “[w]hen participating in organized sports in an indoor business or indoor
public space while the level of exertion makes it difficult to wear a face covering” and
“[w]hen exercising in an indoor business or public indoor space such as a gym or fitness
center, while the level of exertion makes it difficult to wear a face covering, provided that
social distancing is always maintained.” EO 20-81.
31
115. EO 20-81 continues to permit masks to be removed that “[w]hen
participating as an athlete in indoor or outdoor organized sporting events, to the extent
possible, where social distancing is not being maintained.” EO 20-81 § 11(d).
116. But, and apparently in contradiction to EO 20-81, MDH guidance dated
March 14, 2021, requires masks for most, but not all, sports whether indoors or outdoors
and “including practices and games . . .” and applying that requirement to all Youth Sports
Organizations (as defined in the order).
117. The scientific evidence overwhelmingly supports the conclusion that outdoor
sports played by youth pose no meaningful public health risk to COVID-19 transmission.
118. Scientific evidence establishes that the use of face coverings during the active
participation in outdoor organized youth sports has no measurable or demonstrable impact
on COVID-19 transmission.
119. The scientific consensus is that there is a negligible, if not wholly
insignificant, probability of being infected by COVID-19 from a non-symptomatic youth.
120. However, the use of face coverings has been proven to have negative
consequences in general and in youth sports in particular.
121. A study of mask injuries in Minnesota resulting from the use of masks by
youth athletes in accordance with EO 21-01 and MDH guidelines has shown a substantial
number of injuries related to difficulty breathing and impaired vision. MDH has
intentionally ignored this study.
122. Numerous parents and doctors have submitted evidence to MDH of injuries
suffered by youth athletes as a result of wearing masks in youth sports.
32
123. Parents and LTP have submitted videos to MDH showing injuries incurred
by their children as a result of wearing masks in youth sports.
124. MDH has ignored information provided by both parents and treating
physicians regarding injuries from wearing masks in youth sports, including hockey,
basketball, and baseball.
125. While ignoring injuries in these youth sports, MDH exempted wrestling and
gymnastics from its mandate that youth athletes wear masks in sports.
126. MDH had no evidentiary or scientific basis for exempting wrestling or
gymnastics from its mask mandate, other than its willingness to consider that wearing
masks may cause injuries in those two sports.
127. MDH had no basis to ignore injuries in other sports. MDH’s decision was
based the arbitrary decision to consider possible injuries in those two sports, but arbitrarily
ignored evidence and the same possibility of injury in other sports.
128. While there is indisputable data on the negative consequences of masks (that
MDH has elected to ignore), there is no scientific evidence supporting any benefit from or
need for the use of masks while playing youth sports as it relates to having any impact on
COVID.
129. Upon information and belief, MDH conducted, or began to conduct, its own
study on the effectiveness of masks on slowing the spread of COVID-19 in Minnesota, in
or around July or August 2020, yet MDH’s study did not demonstrate that masks made an
appreciable difference in COVID-19 transmission in Minnesota.
33
130. Defendant has produced no facts and has no conceivable basis for applying
or selectively targeting youth outdoor sports played in the winter, the spring, or the
summer for requiring facial coverings, while allowing other persons to participate in
outdoor activities without requiring facial coverings.
131. Defendant has produced no facts and has no conceivable basis because such
facts would be contrary to generally accepted scientific principles including peer
reviewed journals.
132. As a result of the Defendants’ actions, Plaintiffs have been forced to wear
and purchase masks to participate in sports, including while running in track and field and
playing organized baseball for high schools.
133. Governor Walz and MDH have not been content to leave young people alone,
even after COVID cases in the state have precipitously dropped. They accused youth sports
of spreading allegedly frightening “variants” even though they have no basis to allege that
kids are the cause of the spread of such variants, and no basis to allege that the variant(s)
at issue are dangerous.
134. University of Minnesota (“UMN”) has collaborated with Governor Walz and
MDH to attempt to make the B117 variant appear to be dangerous. UMN published an
article frighteningly titled “Death rate 64% higher with B117 COVID variant, study finds,”
The problem with UMN’s finding was it was meaningless.
135. The “64%” cited was the difference between 0.3% of patients who had died
who did not have the B117 variant and 0.4%, the death rate among participants who did
have the B117 variant. These numbers show no risk for the average Minnesota, 99.6% or
34
99.7% of all Minnesotans survive either form of the virus based on the is data. Even more
fatal to the argument is that the study showed that the differences are not statistically
significant. Knowing this, UMN knows it is unethical to report point estimates as being
different when there is no statistically significant difference. This is another example of
Defendants and their allies misleading the public to advance their politically based agenda.
136. Governor Walz and MDH have applied unfair and unequal quarantine rules
on young people and youth athletes that are less favorable than are applied to adults and
non-athletes.
137. MDH has applied different exposure and quarantine rules without advanced
notice and without any scientific basis.
138. Non-athlete students are required to quarantine if they are within 6 feet of
each other for a cumulative total of 15 minutes in a day. Recently, the CDC has stated that
this distance may be reduced to 3 feet.
139. Students can sit indoors, in an enclosed classroom, in stationary desks 6 feet,
1 inch, away from each other and not be required to quarantine if one of the students tests
positive for COVID.
140. Students can sit 2 feet apart for 14 minutes in the same small, enclosed
classroom and not be required to quarantine if one of the students tests positive for COVID.
141. But, if a student athlete who plays hockey as a goalie will be required to
quarantine if a defenseman on the opposing team tests positive for COVID even if that
defenseman never crosses the blueline and never comes within 25 feet of goalie.
35
142. Likewise, if a student athlete who shares the ice for as little as 6 seconds at
the same time as player on the opposing team that later tests positive, MDH has required
these athletes to quarantine.
143. MDH has also required players to quarantine even if they never shared the
ice at the same time as a player on the opposing team that later tested positive.
144. But, inexplicably, MDH does not require a quarantine for players that do not
enter the playing surface, based on some type of magical line. They have specifically
applied this to backup goalies. If a backup goalie at the end of the bench never enters the
game, they are not required to quarantine, even though they may have had the most
exposure to opposing player that later tests positive. This is because of where defenseman
are positioned during a neutral zone of end zone faceoff. These faceoffs can take up to 30
seconds to occur and they occur multiple times during a game. A winger or defenseman
may be within 6 feet of the backup goalie during these faceoffs.
145. These discriminatory, and illogical, quarantine requirements are not just
theoretical, but have been applied to several hockey teams, including the Hill-Murray boys
hockey team. As a result, MDH prohibited these teams from competing in the Minnesota
State High School Hockey Tournament.
146. In the state of hockey, if MDH can prohibit the defending state champions
based on voodoo science, then it can happen to anyone. As such Plaintiffs have a credible
fear of MDH applying such quarantines against them. MDH has continued this policy for
other sports, and has quarantined softball teams based on similar standards.
36
147. The bizarre rules, and logic applied by MDH to youth athletes have not been
applied to exposure to COVID in other circumstances or activities. However, MDH
admitted in sworn testimony that MDH quarantine and isolation rules from exposure to
COVID or a positive COVID test, should be applied identically.
148. Governor Walz and MDH have required, coerced, or collaborated with the
MSHSL and its Executive Director to apply MDH quarantine rules and other unequal and
unfair rules on youth athletes.
149. In August 2020, Governor Walz and/or MDH informed the MSHSL’s
Executive Director that the MSHSL must cancel or postpone Minnesota’s high school
football and volleyball seasons. The MSHSL’s Executive Director privately informed the
MSHSL’s Board that it was required to cancel football and volleyball. The Board complied
with the Executive Director’s direction on behalf of MDH. When the MSHL was
challenged in court, Governor Walz and MDH disclaimed its private direction to cancel
football and volleyball. The MSHSL Board promptly voted to reinstate football and
volleyball in September 2020.
150. Governor Walz and MDH’s decision to blame the MSHSL for cancelling
football and volleyball—rather than rightfully accept ownership for their private mandate
to the MSHSL’s Executive Director—has not deterred the MSHSL’s Executive Director
and its Board from allowing the Governor and MDH to controlling MSHSL decision. Since
September 2020, the MSHSL has allowed Governor Walz and MDH to dictate MSHSL
actions in ways that the MSHSL and its Board know are unnecessary and harmful to high
school athletes.
37
151. Upon information and belief, the MSHSL or its Executive Director has been
promised, or believes, that collaboration with Governor Walz and MDH will be rewarded
through political support for funding to solve MSHSL budget shortfalls that began before
2020.
152. Defendants’ actions have harmed youth athletes, including Plaintiffs, by
requiring them to quarantine when doing so poses no measurable public health benefit.
requiring them to quarantine longer than other young people and other adults, when
Defendants know all should be quarantined equally.
154. Defendants’ actions have harmed youth athletes, including Plaintiffs, and
their parents by requiring them to purchase protective gear they otherwise would not have
purchased and that they will be required to purchase in the future.
forcing them to play sports in other states which have more respect for personal liberty.
imposing arbitrary and capricious restrictions, unsupported science, on their participation
in sports.
causing restrictions in breathing that reduce their ability to fully participate in sports and
create an unsafe environment for them.
38
causing restrictions in vision that reduce their ability to fully participate in sports and create
an unsafe environment for them.
causing injuries as a result of their mask mandates.
causing some youth athletes to not participate in sports because of their inability to play
sports while wearing masks.
causing some youth athletes to quarantine longer than their non-athlete peers, and even
than the Governor himself.
spreading false information regarding sports and young people.
163. MDH and Governor Walz have collaborated closely with Mankato West
High School in 2020 and into 2021. MDH and Governor Walz imposed a very different
quarantine rule on a Mankato West student, Moe 11, who was allegedly exposed in a
Mankato West classroom than he did to himself.
164. Governor Walz let himself out of quarantine on day 10, with ample time to
give his State of the State address in a similar Mankato West classroom. But he and MDH
would not allow one of the healthiest kids in Minnesota swim in the State Swim Meet even
though it fell eleven days after Moe 11’s alleged exposure and he had tested negative for
the virus.
39
CLAIMS FOR RELIEF

(Against All Defendants)
COUNT I
DENIAL OF EQUAL PROTECTION IN VIOLATION OF THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
165. Plaintiffs incorporate by reference each and every preceding paragraph of
this Complaint and reallege the same as if fully set forth herein.
166. The Equal Protection Clause of Fourteenth Amendment to the United States
Constitution provides in relevant part that “nor shall any state . . . deny to any person within
its jurisdiction the equal protection of the laws.”
167. Governor Walz, numerous other Minnesotans, and Moe 11 are similarly
situated in all relevant regards, yet Governor Walz allowed himself to discontinue his
quarantine after a close contact with a person infected with COVID-19 after only 10 days,
whereas Moe 11 was prevented from swimming in the State meet because Governor Walz
and MDH required Moe 11 to quarantine for 14 days.
168. Governor Walz interacts with more people, is more likely to spread COVID,
and is more likely to have serious consequences from COVID than Moe 11.
169. As a result of the unlawful unequal treatment, Plaintiff Moe 11 was forced
to not participate in the state high school swim meet because it took place on day 12 of his
quarantine.
170. Moe 11 was not allowed to know who accused him of exposure in class, so
he could not explain if there had simply been a mistake.
171. Defendants have applied unfair and unequal quarantine rules to numerous
other Minnesota athletes and young people.
40
172. Plaintiffs participate in track, softball, and baseball, and other outdoor
activities.
173. Defendants’ orders and guidance require Plaintiffs to practice and compete
in their outdoor sport wearing a face covering because they are participating as part of what
Defendants’ define as Organized Youth Sports.
174. Plaintiffs are similarly situated in all relevant regards to their peers who are
able to run the same routes with the same people for the same periods of time and are able
to play the same games of baseball or softball on the same fields with the same distancing.
The only difference between the two groups is that one is a part of Organized Youth Sports
and the other is not. Those that participate in the same activities, but not in Organized
Youth Sports are not subject to Defendants’ arbitrary and irrational face covering
requirements.
175. As a result of the unlawful unequal treatment, Plaintiffs are forced to
participate in their sports while suffering the harms and expenses associated with wearing
facial coverings while playing the sport.
176. Through Governor Walz’s Executive Orders, MDH’s Youth Sports Rules
and other actions related to Plaintiffs’ and youth athletes in Minnesota, including as
described below, Defendants have irrationally, unreasonably, and arbitrarily singled out
Minnesota youth who participate in youth sports, and youth sports, for disfavored
treatment, restrictions, and regulations, as compared to other activities, ages, politically
favored categories of individuals, favored populations, or favored activities.
41
177. Minnesota’s young people who desire to safely participate in sports are
treated less favorably than individuals of other ages engaged in the same activities and
individuals who engage in favored activities, including activities that Defendants know
create a greater risk of COVID-19 transmission to their participants and to Minnesota
communities than youth sports.
178. Defendants irrationally, unreasonably, and arbitrarily distinguish between
persons that participate in disfavored youth sports activities which require masks be worn
and persons that participate in favored activities such as certain occupations that are exempt
from wearing masks.
179. Defendants irrationally, unreasonably, and arbitrarily distinguish between
certain youth sports in which they will consider youth injuries, and other youth sports in
which they refuse to consider youth injuries.
180. Defendants have throughout 2020 and into 2021, singled out youth sports for
constantly changing and draconian restrictions.
181. Defendants’ decision to require participants in youth sports to wear masks is
arbitrary and capricious because their decision is not rooted in any factual basis supported
by the record.
182. Defendants intentionally collected data, and designed their collection of data,
for youth sports in a different and less favorable manner that is designed to make youth
sports appear to be unsafe and/or for Defendants’ political purposes.
183. Defendants have favored persons, groups and activities while disfavoring
others (including youth sports) without any rational or lawful basis for doing so.
42
184. Defendants’ decisions are irrational because Defendants’ own data does not
reasonably support its decision to ban youth sports, requirements masks, or ignore injuries
in some sports, but not others.
185. Defendants did not evaluate or collect data to demonstrate that their youth
sports mask requirement decreases the spread of COVID and does not create other, more
serious risks.
186. Defendants know it is unsafe for youth athletes to wear masks in sports, but
do not exempt most youth athletes, even as Defendants favor and exempt others—such as
economically favored adult workers who have a greater risk from COVID than youth
athletes.
187. Defendants’ failure to evaluate equally whether to require masks during
particular activities or to apply such a ban equally among similarly situated persons violates
Plaintiffs’ equal protection rights.
188. Defendants have irrationally and unequally created data collection processes
and related definitions that disfavor youth sports.
189. Defendants have misrepresented and falsely claimed that youth athletes and
youth athletics are unsafe, while favoring and mislabeling other, favored populations and
activities as safe.
190. As a direct result of Defendants’ violation of Plaintiffs’ Fourteenth
Amendment rights to equal protection of the law, as alleged above, Plaintiffs are suffering
irreparable harm for which there is no adequate remedy at law. Plaintiffs are therefore
entitled to injunctive relief, as well as attorneys’ fees.
43
191. As a direct and proximate result of Defendants’ violations, including its
continuing violations, of Plaintiffs’ rights, Plaintiffs have in the past and will continue to
suffer in the future direct and consequential damages, including but not limited to, the loss
of the ability to exercise to safely play sports without harmful and irrational restrictions.
192. As a direct result of Defendants’ violation of Plaintiffs’ rights under the
Fourteen Amendment, Plaintiffs are suffering irreparable harm for which there is no
adequate remedy at law. Plaintiffs are therefore entitled to injunctive relief.
193. Furthermore, as a direct result of Defendants’ violation of Plaintiffs’ rights,
as alleged above, Plaintiffs are entitled to recover compensatory attorneys’ fees.
COUNT II
VIOLATION OF PLAINTIFFS’ RIGHTS TO DUE PROCESS,
PROCEDURAL DUE PROCESS AND/OR SUBSTANTIVE DUE PROCESS
GUARANTEED BY THE FOURTEENTH AMENDMENT TO
THE UNITED STATES CONSTITUTION
195. The Due Process Clause of Fourteenth Amendment to the Unites States
Constitution provides in relevant part that “nor shall any state deprive any person of life,
liberty, or property, without due process of law”
196. The Due Process Clause of Fourteenth Amendment to the Unites States
Constitution provides, as relevant to this Count II, prohibits state action “depriv[ing] any
person of life, liberty, or property, without due process of law . . .”
197. MDH has repeatedly promulgated, issued, amended, repealed, and/or
reissued rules (also labeled “guidance” or “requirements”) related to youth sports on a
44
nearly weekly, and sometimes a daily basis throughout 2020 and into 2021 (hereinafter
“MDH’s Youth Sports Rules”).
198. MDH has no legal authority to issue its Youth Sports Rules.
199. MDH has issued its Youth Sports Rules without advanced, or at times,
without any notice at all.
200. MDH’s Youth Sports Rules are vague and subject to change.
201. Governor Walz’s executive orders purport to—but could not lawfully—
empower or delegate authority to MDH to promulgate MDH’s Youth Sports Rules.
202. MDH’s Youth Sports Rules threaten Plaintiffs and youth athletes in
Minnesota with fines and other penalties for violation of their regularly changing rules.
203. MDH’s Youth Sports Rules disregard requirements in Executive Orders that
purport to authorize them.
204. Plaintiffs have been deprived of liberty and property interests by Plaintiffs’
unlawful actions.
205. Defendants purported orders, rules, and other actions are ultra vires and
arbitrary and amount to a substantive due process violation.
206. MDH Youth Sports Rules constitute rules under the Minnesota
Administrative Procedures Act (“MAPA”), yet MDH has not followed the MAPA.
207. Plaintiffs and Minnesota youth athletes have been subject to vague and
constantly changing Youth Sports Rules without advanced, and often without any, noticed.
Such rules often change without even a press release on a weekly or daily basis.
45
208. Defendants have imposed rules that are unsafe for Plaintiffs without any
scientific basis for such rules.
209. EO 21-01 and other executive orders over the last years, require
compliance—under threat of criminal penalty—with “development and implementation of
a COVID-19 Preparedness Plan in accordance with applicable guidance for youth sports.”
This order also states that “[i]ndividuals engaging in activities outside of the home must
follow the requirements of this Executive Order, Executive Order 20-81 (face coverings),
and MDH and CDC Guidelines.”
210. Defendants’ actions, including MDH “guidelines” and limitation on exceed
standards of inadvertence and are not mere errors of law.
211. Defendants’ actions, rules, and orders, referenced herein, are arbitrary and
capricious, without any evidentiary support, and lacking any rational basis. Such actions,
rules, and orders, referenced herein are motivated by bad faith and/or ill will.”
212. Minnesota Department of Health has promulgated youth sports guidance
without following the Minnesota Administrative Procedures Act or the Minnesota
Emergency Management Act.
213. MDH guidance requires that youth wear masks during sports.
214. Defendants’ guidance is irrational and arbitrary because it is made ultra vires
and violation of it is punishable by fine and imprisonment. Executive Order 22-01 ¶ 7
(imposing a fine of up to $1,000 and 90 days in jail for an individual that willfully violates
the order).
46
215. Defendants’ actions, orders, and rule violate Plaintiffs’ rights to due process,
procedural due process, and substantive due process under the Fourteenth Amendment.
COUNT III
VIOLATION OF THE RIGHT TO EQUAL PROTECTION AND DUE PROCESS,
AS GUARANTEED BY THE MINNESOTA CONSTITUTION
219. The Due Process Clause of Article I, section 7, of the Minnesota Constitution
provides in relevant part that “[n]o person shall be . . . deprived of life, liberty or property
without due process of law.”
220. The Equal Protection Clause of Article I, Section 2, of the Minnesota
Constitution provides in relevant part that “[n]o member of this state shall be . . . deprived
of any of the rights or privileges secured to any citizen thereof, unless by the law of the
land or the judgment of his peers.”
221. The same bases and reasons set forth above in support of Plaintiffs’ other
counts support this count.
222. As a direct result of Defendants’ violation of Plaintiffs’ equal protection and
due process rights under the Minnesota Constitution, as alleged above, Plaintiffs are
47
suffering irreparable harm for which there is no adequate remedy at law. Plaintiffs are
therefore entitled to injunctive relief.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs prays for judgment against Defendants and that this
Court:
A. Adjudge, decree and declare the rights and other legal relations of the parties
to the subject matter in controversy, as set forth above, in order that such declarations shall
have the force and effect of final judgment and that the Court retain jurisdiction of this
matter for the purpose of enforcing the Court’s orders;
B. Pursuant to 28 U.S.C. § 2201, declare the provisions of executive order
related to quarantine guidance unique to young people or youth sports, any mask
requirement outdoors, and any subsequent orders, Defendants’ intentionally biased fact-
finding efforts, and all guidance on their face and as applied to Plaintiffs, to be in violation
of the Fourteenth Amendment to the United States Constitution and the Minnesota
Constitution;
C. Pursuant to 28 U.S.C. § 2201, declare the aforementioned unlawful actions
of Defendants to be in violation of the Fourteenth Amendment to the United States
48
Constitution, and the Minnesota Constitution, including any effect of any executive order
that is designed to single out, stop, discriminate against, or stop youth athletes or any youth
sports team from meeting for practices or game, or any business, facility, or entity serving
or providing services to youth sports or activities;
D. Pursuant to 28 U.S.C. § 2202, FED. R. CIV. P. 65, 42 U.S.C. § 1983,
(i) permanently enjoin Defendants from enforcing any executive to stop any Organized
Youth Sport, as defined in EO 20-99, from meeting for practices or game, or any business,
facility, or entity serving or providing services to youth sports or activities; and (ii) prohibit
any form of protected expressive conduct, assembly, or speech;
E. Pursuant to 28 U.S.C. § 2202, FED. R. CIV. P. 65, 42 U.S.C. § 1983, award
Plaintiffs compensatory and nominal damages, and pre-judgment and post-judgment
interest on these awards;
F. Pursuant to 42 U.S.C. § 1988, and FED. R. CIV. P. 54(d), and other
applicable law, award Plaintiffs its reasonable attorneys’ fees and costs; and
G. Grant such other and further relief as the Court deems equitable, just, and
proper.
49
Dated: April 16, 2021 CROSSCASTLE PLLC
By: s/ Samuel W. Diehl

Samuel W. Diehl (#388371)
Ryan D. Wilson (#400797)
333 Washington Avenue N.
Ste 300-9078
Minneapolis, MN 55401
P: (612) 412-4175
F: (612) 234-4766
Email: sam.diehl@crosscastle.com
ryan.wilson@crosscastle.com
ATTORNEYS FOR PLAINTIFFS

4845-0819-8373, v. 12
50

Let Them Play MN - Amended Complaint Against Gov. Tim Walz

Uploaded by

Copyright:

Available Formats

Let Them Play MN - Amended Complaint Against Gov. Tim Walz

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Let Them Play MN - Amended Complaint Against Gov. Tim Walz

Uploaded by

Copyright:

Available Formats

CASE 0:21-cv-00079-ECT-DTS Doc.

45 Filed 04/16/21 Page 1 of 50

UNITED STATES DISTRICT COURT

were responsible for significant spread.

2. After a failed promise to deliver a “moonshot” saving the elderly, Governor

3. Governor Walz, his staff, Commissioner Malcolm, Kris Ehresmann, and

of COVID without any support in science, data, or evidence.

Governor is wanting LTC to be thinking about being proactive and

this is politics, a dangerous game for the young and vulnerable.

been unfairly blamed, defamed, quarantined, and cancelled.

7. Defendant Governor Tim Walz is a party in his official capacity as Governor

fact does so direct, the Minnesota Department of Health (“MDH”).

8. Governor Walz, together with MDH Commissioner Malcolm, schemed with

he knew were unnecessary.

9. Attorney General Keith Ellison is a party in his official capacity as Attorney

affidavits of Richard Danila described below.

11. Commissioner Jan Malcolm is a party in her official capacity as

MDH leaders to advance the Governor’s scheme.

personal or political benefit.

the issues in this suit.

14. Plaintiff Let Them Play MN (“LTP”) is a Minnesota non-profit corporation.

maintain social distancing and to safely participate.

activities athletes and coaches hoped to undertake (including skiing).

harming her athletes.

without inhibiting restrictions.

concern of passing out during the lift.

and because of continuing irrational requirements, including masks, Moe 3 travelled to

cancelled/postponed football (along with volleyball) as requested or temporarily required

Walz issued EO 20-99. Moe 4 also plays baseball.

and touch their wet masks to enable breathing.

competing in archery with or without protocols.

29. As a result of Defendants’ actions, Minnesota was required to cancel multiple

entire collegiate archery future.

specific position in hockey. Moe 7 is currently homeschooling due to restrictions on his

mandate/face shield and other restrictions on hockey.

assist with masks increases the likelihood of spreading COVID.

by wearing masks while playing goalie.

in the State Meet because of Defendants’ unlawful conduct.

swim meet of Moe 11’s life.

JURISDICTION AND VENUE

43. This Court has personal jurisdiction over Defendants.

Constitution; (b) 28 U.S.C. § 1343(a)(3), as it is brought to redress deprivations, under

to the claims occurred within the District.

MDH’S INITIAL, HAPHAZARD DATA COLLECTION

was neither candid nor scientifically sound.

exposure” to COVID than a restaurant, including travelling, working in healthcare,

working in a nursing home, or other setting unrelated to eating at a restaurant.

interviewed by MDH finding:

49. MDH contradicted these findings in a contemporaneous public document

though it accounted for nearly half of all cases.

was intentionally obscured from public view.

and MDH could not “see” retail outbreaks.

labels and categories in a disingenuous and intentionally misleading manner to mislead,

youth sports and youth athletes.

GOVERNOR WALZ AND MDH’S POLITICALLY

proved impossible, Governor Walz and MDH perpetrated a scheme to demonstrate an

appearance of control, and a façade of “science,” by deceptively collecting and reporting

its seriousness or spread.

scheme to falsely portray them as a problem. MDH manufactured an appearance of