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 CASE 0:21-cv-00079-ECT-DTS Doc. 45 Filed 04/16/21 Page 3 of 50 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 CASE 0:21-cv-00079-ECT-DTS Doc. 45 Filed 04/16/21 Page 4 of 50 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 CASE 0:21-cv-00079-ECT-DTS Doc. 45 Filed 04/16/21 Page 5 of 50 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 CASE 0:21-cv-00079-ECT-DTS Doc. 45 Filed 04/16/21 Page 6 of 50 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.