MINNESOTA VOTERS ALLIANCE; ANDREW CILEK; KIM CROCKETT; CRAIG ANDERSON; YVONNE HUNDSHAMER; and CRAIG JONES, Plaintiffs, v. TIM WALZ, in his official capacity as Governor of Minnesota; STEVE SIMON, in his official capacity as Secretary of State of Minnesota; MARK V. CHAPIN, in his official capacity as Hennepin County Auditor; CHRISTOPHER A. SAMUEL, in his official capacity as Ramsey County Auditor; KEITH ELLISON, in his official capacity as Attorney General of Minnesota; MIKE FREEMAN, in his official capacity as Hennepin County Attorney; and JOHN CHOI, in his official capacity as Ramsey County Attorney, Defendants.
Case No. 20-CV-1688 (PJS/ECW)
UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
October 2, 2020
ORDER
Elizabeth C. Kramer, Megan J. McKenzie, and Kevin A. Finnerty, MINNESOTA ATTORNEY GENERAL‘S OFFICE, for defendants Tim Walz, Steve Simon, and Keith Ellison.
Kelly K. Pierce and Jeffrey M. Wojciechowski, HENNEPIN COUNTY ATTORNEY‘S OFFICE, for defendants Mike Freeman and Mark V. Chapin.
Robert B. Roche, RAMSEY COUNTY ATTORNEY‘S OFFICE, for defendants John Choi and Christopher A. Samuel.
On July 22, 2020, Governor Tim Walz issued Executive Order 20-81, which requires Minnesotans to wear face coverings in indoor public settings in order to control the spread of COVID-19. Plaintiffs—the Minnesota Voters Alliance and five political
This matter is before the Court on plaintiffs’ motion for a preliminary injunction. The Court held a lengthy hearing on that motion on September 23, 2020. For the reasons that follow, plaintiffs’ motion is denied.
I. BACKGROUND
A. The COVID-19 Pandemic
COVID-19 is a deadly disease caused by a virus that is easily sрread between people through respiratory droplets produced when an infected person coughs, sneezes, or talks. Kramer Decl. Ex. 2. It appears that the virus may also be transmitted via respiratory microdroplets that can travel in the air for tens of meters and remain airborne for hours. Id. Exs. 3, 4. As a result, COVID-19 is easily transmitted in indoor environments, particularly if those environments are crowded or lack adequate ventilation. Id. Ex. 3. The virus may be transmitted by infected people who have no symptoms and do not even know that they are infected. Id. Exs. 5, 8.
On March 11, 2020, the World Health Organization declared a global pandemic. Id. Ex. 6. Since the start of the pandemic, over 7.2 million cases of COVID-19 in the United States have been reported to the Centers for Disease Control and Prevention (“CDC“) and over 206,000 Americans have died, including over 2,000 Minnesotans.2 There is currently no cure and no vaccine. Id. Exs. 1, 5. In response to this public-health crisis, the President declared a national emergency on March 13, 2020 and later
approved major disaster declarations in all 50 states—the first time a president had done so in the history of the United States. Id. Exs. 9, 10.
B. Face Coverings
Federal and state health officials recommend face coverings to slow the spread of COVID-19. According to CDC officials, “the more individuals wear cloth face coverings in public places where they may be close together, the more the entire community is protected.” Id. Ex. 12. Recent studies have found that face-covering mandates are associated with large declines in the growth rate of COVID-19 infections and fatalities. Id. Exs. 21, 22, 24. One study estimated that a nationwide mandate would significantly benefit the economy by substituting a mask mandate for renewed lockdowns that would subtract nearly 5% from GDP. Id. Ex. 24. Projections by the University of Washington indicate that
It is important to stress that plaintiffs do not deny any of this. Plaintiffs do not deny the existence of COVID-19, or that it is a dangerous disease, or that it is easily spread (including by people who do not know that they are infected), or that face coverings slow its spread and thus save lives. To the contrary, plaintiffs emphasize that “[n]o one in this case is saying that mask wearing isn‘t a good thing.” ECF No. 1 at 1–2.
C. Executive Order 20-81
On March 13, 2020, the same day that the President declared a national emergency, Governor Walz declared a peacetime emergency in Minnesota. See
II. ANALYSIS
A. Standard of Review
In reviewing a motion for a preliminary injunction, a court must consider four factors: (1) the movant‘s likelihood of success on the merits; (2) the threat of irreparable harm to the movant if the injunction is not granted; (3) the balance between that harm and the harm that granting the injunction will inflict on the other parties; and (4) the
public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc). “A preliminary injunction is an extraordinary remedy, and the burden of establishing the propriety of an injunction is on the movant.” Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003) (internal citation omitted).
B. Likelihood of Success
The main thrust of plaintiffs’ amended complaint is that it is impossible for anyone to enter an indoor рublic setting in Minnesota without committing a crime. On the one hand, EO 20-81 makes it unlawful not to wear a face covering in an indoor public setting. On the other hand, according to plaintiffs, a Minnesota statute makes it unlawful to wear a face covering in any public place, including any indoor public setting. Specifically,
A person whose identity is concealed by the person in a public place by means of a robe, mask, or other disguise, unless based on religious beliefs, or incidental to amusement, entertainment, protection from weather, or medical treatment, is guilty of a misdemeanor.
Because EO 20-81 and
such as voting in person, campaigning in public, and associating with others in indoor settings.
1. Jurisdictional Issues
a. Standing
Defendants argue that plaintiffs are unlikely to prevail in this litigation because they lack standing. “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Standing consists of three elements: “[(1)] an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.‘” Id. at 1548 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). The plaintiff bears
the burden of establishing standing and must clearly allege facts demonstrating each element. Id. at 1547; Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014).
i. Ramsey Defendants
Under Minnesota law, county attorneys “shall . . . prosecute felonies . . . and, to the extent prescribed by law, gross misdemeanors, misdemeanors, petty misdemeanors, and violations of municipal ordinances, charter provisions and rules or regulations[.]”
The Ramsey defendants argue that, because state law does not give the Ramsey County Attorney authority to prosecute these offenses, plaintiffs’ alleged injuries are not traceable to him, nor would plaintiffs’ injuries be redressed by a favorable judicial decision on any claims against him.3 See Dig. Recognition Network, Inc. v. Hutchinson, 803
F.3d 952, 957–58 (8th Cir. 2015) (“When a plaintiff brings a pre-enforcement challenge to the constitutionality of a particular statutory provision, the causation element of standing requires the named defendants to possess authority to enforce the complained-of provision.” (cleaned up)).
In response, plaintiffs do not point to any provision of state law granting the Ramsey County Attorney authority to prosecute misdemeanors under
At oral argument, plaintiffs pointed out that county attorneys have civil-enforcement powers under EO 20-81. But the provision that plaintiffs cited addresses the liability of businesses, not individuals. EO 20-81 ¶ 20(b)(ii). Nowhere in plaintiffs’ amended complaint or briefs does any plaintiff contend that the plaintiff is a business or
otherwise subject to EO 20-81‘s business provisions. Because plaintiffs have failed to meet their burden to show traceability and redressability as against the Ramsey County Attorney, the Court finds that plaintiffs are unlikely to prevail on any claims against him. See Dig. Recognition Network, Inc., 803 F.3d at 958 (“The redressability prong is not met when a plaintiff seeks relief against a defendant with no power to enforce a challenged statute.” (citation and quotation marks omitted)).
With respect to the Ramsey County Auditor, the Ramsey defendants similarly argue that there is no law giving him the authority to prosecute offenses under either
face coverings are required and that the voter‘s refusal to comply with that requirement will be recorded and “reported to the appropriate authorities.” Am. Compl. Ex. 2.
This guidance was issued to county auditors and election officials, but it does not purport to be binding; rather, it is characterized as “guidance that we hope is helpful as you work with your municipalities on polling place procedures.” Am. Compl. Ex. 2. Nor does this guidance vest county auditors with any authority to prosecute violations оf EO 20-81; instead, it simply recommends that the auditors advise election officials to report any violations to the “appropriate authorities.” Am. Compl. Ex. 2. It therefore appears that plaintiffs do not have standing to pursue any claims against the Ramsey County Auditor.4
The State and Hennepin defendants argue that plaintiffs do not have standing because they have failed to plead a particularized injury; instead, the injury that plaintiffs identify (being subject to the allegedly conflicting dictates of
standing to challenge that action in federal court. Instead, those cases involve attempts by a plaintiff to vindicate a generalized, abstract interest in the proper application of the law. See, e.g., Lance v. Coffman, 549 U.S. 437, 441–42 (2007) (рlaintiffs lacked standing to challenge judicial redistricting because “[t]he only injury plaintiffs allege is that the law—specifically the
Here, by contrast, plaintiffs allege an injury personal to them. Specifically, they allege that they want to engage in political activities in indoor public settings but are chilled from doing so. This is a sufficiently individual and particularized injury, at least insofar as plaintiffs’ claims rest on the alleged conflict between
widely shared go hand in hand. But their association is not invariable, and where a harm is concrete, though widely shared, the Court has found ‘injury in fact.‘“).
With respect to plaintiffs’ standalone challenges to the validity of EO 20-81, however, their allegations appear insufficient to establish an injury in fact. The amended complaint alleges that plaintiffs want the freedom to choose whether to wear a mask, Am. Compl. ¶¶ 3, 30, that they intend to vote and engage in other political activities either wearing or not wearing a mask, Am. Compl. ¶ 18, and that they have “a right to protect themselves by wearing a mask and a right to politically protest the government‘s pandemic response by not wearing a mask,” Am. Compl. ¶ 4. As an aside, the Court notes that plaintiffs’ claims are inconsistent with some of the major premises of their lawsuit. Plaintiffs strenuously argue that
In any event, the amended complaint stops short of alleging that any individual
alleging facts demonstrating each element of standing, Spokeo, 136 S. Ct. at 1547, and “[e]ach plaintiff must establish standing for each form of relief sought,” Miller v. Thurston, 967 F.3d 727, 734 (8th Cir. 2020). As no plaintiff has clearly “allege[d] an intention to engage in a course of conduct arguably . . . proscribed by” EO 20-81, Susan B. Anthony List, 573 U.S. at 159 (citation and quotation marks omitted), no plaintiff appears to have standing to challenge the validity of EO 20-81 in its own right.5
The State and Hennepin defendants also argue that plaintiffs’ alleged future injuries are too speculative to establish standing. See Clapper v. Amnesty Int‘l, USA, 568 U.S. 398, 409 (2013) (“we have repeatedly reiterated that threatened injury must be certainly impending to constitute injury in fact, and that allegations of possible future injury are not sufficient” (cleaned up)). Relatedly, the State and Hennepin defendants argue that plaintiffs face no risk of prosecution from them and therefore plaintiffs’ injuries are not “fairly traceable” to them.
With respect to the Secretary of State: The only alleged connection between the Secretary of State and plaintiffs’ alleged injury is the July 22 guidance discussed above. The guidance, however, is simply that—guidance—and plaintiffs do not point to any provision in any law granting the Secretary of Statе any authority to prosecute
violations of either
With respect to the remaining State and Hennepin defendants: “The Supreme Court has repeatedly found that plaintiffs have standing to bring pre-enforcement
course of conduct arguably affected with a constitutional interest which is clearly proscribed by statute, courts have found standing to challenge the statute, even absent a specific threat of enforcement.“).
It is true that EO 20-81 sets forth the state‘s official policy that wearing a face covering in compliance with EO 20-81 does not violate
b. Eleventh Amendment
i. Ex parte Young
The State defendants next argue that they are entitled to
In 281 Care Committee, the Eighth Circuit held that the Minnesota Attorney General had a sufficient connection with the enforcement of a challenged state statute based in part on the fact that, under
and trial courts to direct him to sign indictments). It therefore appeаrs that plaintiffs’ claims against the Attorney General may fall within Ex parte Young. Similarly,
The Court recognizes that, in a second appeal, the Eighth Circuit in 281 Care Committee held that the Minnesota Attorney General was immune under the
ii. Pennhurst
Finally, the State defendants argue that, under the
As the Supreme Court explained in Pennhurst, the Ex parte Young exception to
defendants from enforcing state law even if their construction of state law was based on an erroneous interpretation of federal law).
Plaintiffs’ only argument regarding Pennhurst seems to be that, although the Court cannot enjoin state officials from violating state law, the Court can decide whether state officials have violated state law in the course of litigating the federal constitutional claims. But whether EO 20-81 violates the
To summarize, then, it appears that the Court likely has jurisdiction only over plaintiffs’ federal claims against the Governor, the Attorney General, and the Hennepin defendants, and only insofar as those claims rest on plaintiffs’ allegation that EO 20-81 conflicts with
2. Merits
a. Section 609.735 and EO 20-81
As noted, plaintiffs’ main claim is that they are caught in an impossible situation:
These issues have not been addressed by the Minnesota Supreme Court, and therefore this Court must attempt to predict “what that court would probably hold were it to decidе the issue[s].” Ventura v. Titan Sports, Inc., 65 F.3d 725, 729 (8th Cir. 1995). For a number of reasons, this Court believes that the Minnesota Supreme Court would hold that
The original version of the statute was enacted in 1923.10 See
The statute was amended in 1963. See
In addition to the statutory history, the language of
It is true that, if
Finally, the Court believes that the Minnesota Supreme Court would interpret
Indeed, as plaintiffs interpret the statute,
This is not to say that plaintiffs’ position that
b. Challenges to the Validity of EO 20-81
As noted, because plaintiffs have not clearly alleged that they intend to enter public indoor spaces without face coverings, they likely lack standing to pursue their challenges to the validity of
i. Elections Clause
The Elections Clause provides as follows:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
Plaintiffs’ briefs and amended complaint seem to contend that
The Court disagrees. Plaintiffs have not cited, and the Court has not found, a single case holding that a generally applicable provision that incidentally applies at a polling place constitutes a regulation of the “Times, Places and Manner of holding Elections.” Cf. Cook v. Gralike, 531 U.S. 510, 523–24 (2001) (holding that the challenged law “bears no relation to the ‘manner’ of elections as we understand it, for in our commonsense view that term encompasses matters like ‘notices, registration, supervision of voting, protection of voters,
The fact that the Secretary of State provided advice as to how to implement
ii. First Amendment
Finally, plaintiffs allege that
The Supreme Court has recognized that expressive conduct may be entitled to a measure of First Amendment protection. Texas v. Johnson, 491 U.S. 397, 404 (1989) (flag burning). In general, courts evaluate the validity of a law that regulates expressive conduct under the standard articulated in
If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into “speech” simply by talking about it. For instance, if an individual announces that he intends to express his disapproval of the Internal Revenuе Service by refusing to pay his income taxes, we would have to apply
O‘Brien to determine whether the Tax Code violates the First Amendment. NeitherO‘Brien nor its progeny supports such a result.
Rumsfeld v. F. for Acad. & Inst‘l Rts., Inc., 547 U.S. 47, 66 (2006) (”FAIR“) (rejecting First Amendment challenge to provision requiring institutions of higher learning to permit military recruiters access to students on the same basis as other recruiters or forfeit certain federal funds).
To merit First Amendment protection under
Even if wearing or not wearing a face covering was inherently expressive,
a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
There is no question that Minnesota has the constitutional authority to enact measures to protect the health and safety of its citizens. See Jacobson, 197 U.S. at 24–25 (under the Constitution, statеs retain the general police power to enact reasonable regulations to protect public health and safety). Likewise, there is no question that
Likewise,
C. Threat of Irreparable Harm, Balance of Harms, and the Public Interest
Plaintiffs have not shown a threat of irreparable harm. They likely lack standing to pursue any claims against the Ramsey defendants or the Secretary of State. Similarly, they likely lack standing to pursue any standalone challenge to the validity of
That leaves plaintiffs’ claim that the alleged conflict between
The record before the Court contains no evidence that either
This is hardly surprising, as
In addition, given that their alleged inability to vote in person is a focal point of plaintiffs’ allegations of irreparable harm, it is worth noting that plaintiffs can vote in person without fear of prosecution under
In contrast to the non-existent threat of prosecution under
predicted will save thousands of lives. Moreover, while plaintiffs focus on the аlleged harm to their ability to vote in person, it is far more likely that enjoining enforcement of
Having carefully considered all of the Dataphase factors, the Court finds that plaintiffs are not entitled to a preliminary injunction.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT plaintiffs’ motion for a preliminary injunction [ECF No. 8] is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: October 2, 2020
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge