`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
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`MINNESOTA VOTERS ALLIANCE;
`ANDREW CILEK; KIM CROCKETT;
`CRAIG ANDERSON; YVONNE
`HUNDSHAMER; and CRAIG JONES,
`
`Plaintiffs,
`
`Case No. 20‐CV‐1688 (PJS/ECW)
`
`v.
`
`ORDER
`
`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.
`
`Erick G. Kaardal, MOHRMAN, KAARDAL & ERICKSON, P.A., for plaintiffs.
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`Elizabeth C. Kramer, Megan J. McKenzie, and Kevin A. Finnerty, MINNESOTA
`ATTORNEY GENERAL’S OFFICE, for defendants Tim Walz, Steve Simon, and
`Keith Ellison.
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`Kelly K. Pierce and Jeffrey M. Wojciechowski, HENNEPIN COUNTY
`ATTORNEY’S OFFICE, for defendants Mike Freeman and Mark V. Chapin.
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`Robert B. Roche, RAMSEY COUNTY ATTORNEY’S OFFICE, for defendants
`John Choi and Christopher A. Samuel.
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`On July 22, 2020, Governor Tim Walz issued Executive Order 20‐81, which
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`requires Minnesotans to wear face coverings in indoor public settings in order to control
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`the spread of COVID‐19. Plaintiffs—the Minnesota Voters Alliance and five political
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`activists—have brought this action against Governor Walz and other public officials1 to
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`challenge the legality of Executive Order 20‐81. Plaintiffs have framed this action as
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`primarily relating to the impact of Executive Order 20‐81 on their right to vote in the
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`upcoming election. In fact, though, plaintiffs argue that Executive Order 20‐81 is
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`invalid in its entirety—i.e., that Governor Walz does not have authority to order any
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`person to wear a face covering in any indoor public setting. Indeed, plaintiffs go even
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`further: Plaintiffs argue that it is illegal for any person to choose to wear a face covering
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`in a public place for the purpose of preventing the spread of COVID‐19.
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`This matter is before the Court on plaintiffs’ motion for a preliminary injunction.
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`The Court held a lengthy hearing on that motion on September 23, 2020. For the
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`reasons that follow, plaintiffs’ motion is denied.
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`1Plaintiffs have sued Governor Walz, Secretary of State Steve Simon, and
`Attorney General Keith Ellison (“the State defendants”); Hennepin County Attorney
`Mike Freeman and Hennepin County Auditor Mark Chapin (“the Hennepin
`defendants”); and Ramsey County Attorney John Choi and Ramsey County Auditor
`Christopher Samuel (“the Ramsey defendants”).
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`-2-
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`I. BACKGROUND
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`A. The COVID‐19 Pandemic
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`COVID‐19 is a deadly disease caused by a virus that is easily spread between
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`people through respiratory droplets produced when an infected person coughs,
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`sneezes, or talks. Kramer Decl. Ex. 2. It appears that the virus may also be transmitted
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`via respiratory microdroplets that can travel in the air for tens of meters and remain
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`airborne for hours. Id. Exs. 3, 4. As a result, COVID‐19 is easily transmitted in indoor
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`environments, particularly if those environments are crowded or lack adequate
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`ventilation. Id. Ex. 3. The virus may be transmitted by infected people who have no
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`symptoms and do not even know that they are infected. Id. Exs. 5, 8.
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`On March 11, 2020, the World Health Organization declared a global pandemic.
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`Id. Ex. 6. Since the start of the pandemic, over 7.2 million cases of COVID‐19 in the
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`United States have been reported to the Centers for Disease Control and Prevention
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`(“CDC”) and over 206,000 Americans have died, including over 2,000 Minnesotans.2
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`There is currently no cure and no vaccine. Id. Exs. 1, 5. In response to this public‐health
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`crisis, the President declared a national emergency on March 13, 2020 and later
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`2See Centers for Disease Control and Prevention, at
`www.cdc.gov/coronavirus/2019‐ncov/cases‐updates/cases‐in‐us.html (last visited Oct. 2,
`2020).
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`-3-
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`approved major disaster declarations in all 50 states—the first time a president had
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`done so in the history of the United States. Id. Exs. 9, 10.
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`B. Face Coverings
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`Federal and state health officials recommend face coverings to slow the spread of
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`COVID‐19. According to CDC officials, “the more individuals wear cloth face
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`coverings in public places where they may be close together, the more the entire
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`community is protected.” Id. Ex. 12. Recent studies have found that face‐covering
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`mandates are associated with large declines in the growth rate of COVID‐19 infections
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`and fatalities. Id. Exs. 21, 22, 24. One study estimated that a nationwide mandate
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`would significantly benefit the economy by substituting a mask mandate for renewed
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`lockdowns that would subtract nearly 5% from GDP. Id. Ex. 24. Projections by the
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`University of Washington indicate that universal use of face coverings would save
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`thousands of lives in Minnesota. Id. Ex. 23.
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`It is important to stress that plaintiffs do not deny any of this. Plaintiffs do not
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`deny the existence of COVID‐19, or that it is a dangerous disease, or that it is easily
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`spread (including by people who do not know that they are infected), or that face
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`coverings slow its spread and thus save lives. To the contrary, plaintiffs emphasize that
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`“[n]o one in this case is saying that mask wearing isn’t a good thing.” ECF No. 1 at 1–2.
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`-4-
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`C. Executive Order 20‐81
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`On March 13, 2020, the same day that the President declared a national
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`emergency, Governor Walz declared a peacetime emergency in Minnesota. See
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`Executive Order 20‐01; Minn. Stat. § 12.31, subd. 2(a). Among the actions that Governor
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`Walz has taken pursuant to his emergency powers is issuing Executive Order 20‐81
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`(“EO 20‐81”), which requires Minnesotans to wear face coverings while present in
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`indoor businesses and public indoor spaces and while waiting outdoors to enter an
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`indoor business or public indoor space. Am. Compl. Ex. 1 [hereinafter “EO 20‐81”]
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`¶ 9(a). Certain individuals are exempt from the mandate, including individuals with
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`physical or mental conditions that make it unreasonable for them to wear a face
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`covering, workers for whom a face covering would create a job hazard, and children
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`under the age of six. EO 20‐81 ¶ 8. An individual who willfully violates EO 20‐81 is
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`guilty of a petty misdemeanor. EO 20‐81 ¶ 20(a).
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`II. ANALYSIS
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`A. Standard of Review
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`In reviewing a motion for a preliminary injunction, a court must consider four
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`factors: (1) the movant’s likelihood of success on the merits; (2) the threat of irreparable
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`harm to the movant if the injunction is not granted; (3) the balance between that harm
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`and the harm that granting the injunction will inflict on the other parties; and (4) the
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`-5-
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`public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en
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`banc). “A preliminary injunction is an extraordinary remedy, and the burden of
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`establishing the propriety of an injunction is on the movant.” Watkins Inc. v. Lewis, 346
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`F.3d 841, 844 (8th Cir. 2003) (internal citation omitted).
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`B. Likelihood of Success
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`The main thrust of plaintiffs’ amended complaint is that it is impossible for
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`anyone to enter an indoor public setting in Minnesota without committing a crime. On
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`the one hand, EO 20‐81 makes it unlawful not to wear a face covering in an indoor
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`public setting. On the other hand, according to plaintiffs, a Minnesota statute makes it
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`unlawful to wear a face covering in any public place, including any indoor public
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`setting. Specifically, Minn. Stat. § 609.735 provides:
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`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.
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`Because EO 20‐81 and § 609.735 are in direct conflict, plaintiffs argue, they cannot
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`enter an indoor public place—such as a polling place, or a meeting hall, or even a
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`grocery store—without committing a crime. As a result, plaintiffs contend that they are
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`chilled from engaging in political activities that are protected by the First Amendment,
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`-6-
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`such as voting in person, campaigning in public, and associating with others in indoor
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`settings.
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`Plaintiffs also allege that EO 20‐81, in combination with guidance from the
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`Secretary of State concerning how to implement EO 20‐81 at polling places, violates the
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`Elections Clause in Article I, § 4 of the United States Constitution. Plaintiffs further
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`allege that EO 20‐81, standing alone, violates the First Amendment and various
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`provisions of the Minnesota Constitution. Before addressing the merits of plaintiffs’
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`claims, the Court must address a number of thorny jurisdictional issues.
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`1. Jurisdictional Issues
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`a. Standing
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`Defendants argue that plaintiffs are unlikely to prevail in this litigation because
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`they lack standing. “Standing to sue is a doctrine rooted in the traditional
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`understanding of a case or controversy.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
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`(2016). Standing consists of three elements: “[(1)] an injury in fact, (2) that is fairly
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`traceable to the challenged conduct of the defendant, and (3) that is likely to be
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`redressed by a favorable judicial decision.” Id. “To establish injury in fact, a plaintiff
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`must show that he or she suffered ‘an invasion of a legally protected interest’ that is
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`‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’”
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`Id. at 1548 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). The plaintiff bears
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`-7-
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`the burden of establishing standing and must clearly allege facts demonstrating each
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`element. Id. at 1547; Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014).
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`i. Ramsey Defendants
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`Under Minnesota law, county attorneys “shall . . . prosecute felonies . . . and, to
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`the extent prescribed by law, gross misdemeanors, misdemeanors, petty misdemeanors,
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`and violations of municipal ordinances, charter provisions and rules or regulations[.]”
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`Minn. Stat. § 388.051, subd. 1(3); see also Minn. Stat. § 484.87, subd. 3 (“Except as
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`provided in subdivision 2 and as otherwise provided by law, violations of state law that
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`are petty misdemeanors or misdemeanors must be prosecuted by the attorney of the
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`statutory or home rule charter city where the violation is alleged to have occurred, if the
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`city has a population greater than 600.”). As noted, a violation of § 609.735 is a
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`misdemeanor, and a violation of EO 20‐81 is a petty misdemeanor.
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`The Ramsey defendants argue that, because state law does not give the Ramsey
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`County Attorney authority to prosecute these offenses, plaintiffs’ alleged injuries are
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`not traceable to him, nor would plaintiffs’ injuries be redressed by a favorable judicial
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`decision on any claims against him.3 See Dig. Recognition Network, Inc. v. Hutchinson, 803
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`3The Hennepin defendants do not argue that the Hennepin County Attorney
`lacks authority to prosecute non‐felony offenses. At oral argument, defendants
`explained that, unlike Ramsey County, Hennepin County contains unincorporated
`areas in which there is no city attorney available to prosecute non‐felony offenses, and
`accordingly the Hennepin County Attorney has some authority to prosecute such
`(continued...)
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`-8-
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`F.3d 952, 957–58 (8th Cir. 2015) (“When a plaintiff brings a pre‐enforcement challenge to
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`the constitutionality of a particular statutory provision, the causation element of
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`standing requires the named defendants to possess authority to enforce the complained‐
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`of provision.” (cleaned up)).
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`In response, plaintiffs do not point to any provision of state law granting the
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`Ramsey County Attorney authority to prosecute misdemeanors under § 609.735 or
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`petty misdemeanors under EO 20‐81. Instead, plaintiffs cite State v. Lemmer, 736 N.W.2d
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`650 (Minn. 2007), which states that “the county attorney acts as the attorney for the state
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`in all criminal matters within the county and has no authority to act in civil cases, such
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`as implied consent proceedings, in which the state is a party.” Id. at 660. But Lemmer
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`had nothing to do with the allocation of prosecutorial authority between county and
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`city attorneys; indeed, later in the same paragraph, Lemmer cites § 388.051 and notes that
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`county attorneys’ duties “include prosecuting felonies, and to the extent prescribed by law,
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`gross misdemeanors, misdemeanors, and petty misdemeanors.” Id. (emphasis added).
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`At oral argument, plaintiffs pointed out that county attorneys have civil‐
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`enforcement powers under EO 20‐81. But the provision that plaintiffs cited addresses
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`the liability of businesses, not individuals. EO 20‐81 ¶ 20(b)(ii). Nowhere in plaintiffs’
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`amended complaint or briefs does any plaintiff contend that the plaintiff is a business or
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`3(...continued)
`offenses.
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`otherwise subject to EO 20‐81’s business provisions. Because plaintiffs have failed to
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`meet their burden to show traceability and redressability as against the Ramsey County
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`Attorney, the Court finds that plaintiffs are unlikely to prevail on any claims against
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`him. See Dig. Recognition Network, Inc., 803 F.3d at 958 (“The redressability prong is not
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`met when a plaintiff seeks relief against a defendant with no power to enforce a
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`challenged statute.” (citation and quotation marks omitted)).
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`With respect to the Ramsey County Auditor, the Ramsey defendants similarly
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`argue that there is no law giving him the authority to prosecute offenses under either
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`§ 609.735 or EO 20‐81. Plaintiffs point to a July 22 guidance memorandum issued by the
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`Secretary of State to county auditors and election officials concerning the impact of
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`EO 20‐81 on voting in Minnesota. Am. Compl. Ex. 2. The Secretary of State issued the
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`guidance in response to questions concerning how to handle compliance with EO 20‐81
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`in polling places. Am. Compl. Ex. 2. The guidance recommends that, if a voter enters a
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`polling place without a face covering, (1) an election official should inform the voter of
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`the face‐covering requirement and offer the voter a disposable mask; (2) if the voter
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`refuses to wear a face covering, the voter should be offered the opportunity for outdoor
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`curbside voting; and (3) if the voter insists on voting inside the polling place without a
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`face covering, the voter should be permitted to do so after again being informed that
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`face coverings are required and that the voter’s refusal to comply with that requirement
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`will be recorded and “reported to the appropriate authorities.” Am. Compl. Ex. 2.
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`This guidance was issued to county auditors and election officials, but it does not
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`purport to be binding; rather, it is characterized as “guidance that we hope is helpful as
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`you work with your municipalities on polling place procedures.” Am. Compl. Ex. 2.
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`Nor does this guidance vest county auditors with any authority to prosecute violations
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`of EO 20‐81; instead, it simply recommends that the auditors advise election officials to
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`report any violations to the “appropriate authorities.” Am. Compl. Ex. 2. It therefore
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`appears that plaintiffs do not have standing to pursue any claims against the Ramsey
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`County Auditor.4
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`ii. State and Hennepin Defendants
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`The State and Hennepin defendants argue that plaintiffs do not have standing
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`because they have failed to plead a particularized injury; instead, the injury that
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`plaintiffs identify (being subject to the allegedly conflicting dictates of § 609.735 and EO
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`20‐81) is suffered by all Minnesotans. The cases on which defendants rely, however, do
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`not hold that if a government action violates the rights of all citizens, no citizen has
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`4The Hennepin defendants did not raise this argument with respect to the
`Hennepin County Auditor, and the Court does not know whether the authority of the
`Hennepin County Auditor differs from the authority of the Ramsey County Auditor. If
`the two auditors are similarly situated, plaintiffs would not appear to have standing to
`pursue claims against the Hennepin County Auditor.
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`-11-
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`standing to challenge that action in federal court. Instead, those cases involve attempts
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`by a plaintiff to vindicate a generalized, abstract interest in the proper application of the
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`law. See, e.g., Lance v. Coffman, 549 U.S. 437, 441–42 (2007) (plaintiffs lacked standing to
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`challenge judicial redistricting because “[t]he only injury plaintiffs allege is that the
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`law—specifically the Elections Clause—has not been followed”); see also FEC v. Akins,
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`524 U.S. 11, 23 (1998) (“The kind of judicial language to which the FEC points, however,
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`invariably appears in cases where the harm at issue is not only widely shared, but is
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`also of an abstract and indefinite nature—for example, harm to the ‘common concern
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`for obedience to law.’” (quoting L. Singer & Sons v. Union Pac. R., 311 U.S. 295, 303
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`(1940))).
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`Here, by contrast, plaintiffs allege an injury personal to them. Specifically, they
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`allege that they want to engage in political activities in indoor public settings but are
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`chilled from doing so. This is a sufficiently individual and particularized injury, at least
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`insofar as plaintiffs’ claims rest on the alleged conflict between § 609.735 and EO 20‐81.
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`See Susan B. Anthony List, 573 U.S. at 159 (“a plaintiff satisfies the injury‐in‐fact
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`requirement where he alleges an intention to engage in a course of conduct arguably
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`affected with a constitutional interest, but proscribed by a statute, and there exists a
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`credible threat of prosecution thereunder” (citation and quotation marks omitted));
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`Akins, 524 U.S. at 24 (“Often the fact that an interest is abstract and the fact that it is
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`widely shared go hand in hand. But their association is not invariable, and where a
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`harm is concrete, though widely shared, the Court has found ‘injury in fact.’”).
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`With respect to plaintiffs’ standalone challenges to the validity of EO 20‐81,
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`however, their allegations appear insufficient to establish an injury in fact. The
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`amended complaint alleges that plaintiffs want the freedom to choose whether to wear
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`a mask, Am. Compl. ¶¶ 3, 30, that they intend to vote and engage in other political
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`activities either wearing or not wearing a mask, Am. Compl. ¶ 18, and that they have “a
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`right to protect themselves by wearing a mask and a right to politically protest the
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`government’s pandemic response by not wearing a mask,” Am. Compl. ¶ 4. As an
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`aside, the Court notes that plaintiffs’ claims are inconsistent with some of the major
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`premises of their lawsuit. Plaintiffs strenuously argue that § 609.735 makes it unlawful
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`to wear a mask in a public place, and that wearing a mask to slow the spread of COVID‐
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`19 does not fit within the “medical treatment” exception to the statute. Plaintiffs further
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`argue that EO‐81 is invalid because an executive order cannot conflict with a valid
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`statute. If plaintiffs are correct, they do not have the right to “choose” whether or not to
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`wear a mask in a public place; § 609.735 bars them from doing so.
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`In any event, the amended complaint stops short of alleging that any individual
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`plaintiff wants or intends to violate EO 20‐81 by not wearing a face covering when
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`EO 20‐81 would require them to do so. Again, plaintiffs bear the burden of clearly
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`-13-
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`alleging facts demonstrating each element of standing, Spokeo, 136 S. Ct. at 1547, and
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`“[e]ach plaintiff must establish standing for each form of relief sought,” Miller v.
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`Thurston, 967 F.3d 727, 734 (8th Cir. 2020). As no plaintiff has clearly “allege[d] an
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`intention to engage in a course of conduct arguably . . . proscribed by” EO 20‐81, Susan
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`B. Anthony List, 573 U.S. at 159 (citation and quotation marks omitted), no plaintiff
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`appears to have standing to challenge the validity of EO 20‐81 in its own right.5
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`The State and Hennepin defendants also argue that plaintiffs’ alleged future
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`injuries are too speculative to establish standing. See Clapper v. Amnesty Int’l, USA, 568
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`U.S. 398, 409 (2013) (“we have repeatedly reiterated that threatened injury must be
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`certainly impending to constitute injury in fact, and that allegations of possible future
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`injury are not sufficient” (cleaned up)). Relatedly, the State and Hennepin defendants
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`argue that plaintiffs face no risk of prosecution from them and therefore plaintiffs’
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`injuries are not “fairly traceable” to them.
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`With respect to the Secretary of State: The only alleged connection between the
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`Secretary of State and plaintiffs’ alleged injury is the July 22 guidance discussed above.
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`The guidance, however, is simply that—guidance—and plaintiffs do not point to any
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`provision in any law granting the Secretary of State any authority to prosecute
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`5This argument would appear to preclude plaintiffs from establishing standing
`with respect to such claims against the Ramsey defendants as well. See Dunbar v. Wells
`Fargo Bank, N.A., 709 F.3d 1254, 1256 n.4 (8th Cir. 2013) (federal courts have an
`independent obligation to determine whether subject‐matter jurisdiction exists).
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`violations of either § 609.735 or EO 20‐81. It therefore appears that plaintiffs lack
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`standing to pursue claims against the Secretary of State.6
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`With respect to the remaining State and Hennepin defendants: “The Supreme
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`Court has repeatedly found that plaintiffs have standing to bring pre‐enforcement First
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`Amendment challenges to criminal statutes, even when those statutes have never been
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`enforced.” 281 Care Comm. v. Arneson, 638 F.3d 621, 628 (8th Cir. 2011). “It is only
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`evidence—via official policy or a long history of disuse—that authorities actually reject
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`a statute that undermines its chilling effect.” Id.; see also UFCW Int’l Union v. IBP, Inc.,
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`857 F.2d 422, 428 (8th Cir. 1988) (“Where plaintiffs allege an intention to engage in a
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`6For similar reasons, the Secretary of State is likely entitled to Eleventh
`Amendment immunity. See Ex parte Young, 209 U.S. 123, 157 (1908) (for the Ex parte
`Young exception to Eleventh Amendment immunity to apply, the state official must
`have “some connection” to the challenged law); see also Calzone v. Hawley, 866 F.3d 866,
`869 (8th Cir. 2017) (noting that, in cases against state officials, the standing and Eleventh
`Amendment issues are similar).
`
`The Court does not read Calzone or Missouri Protection & Advocacy Services, Inc. v.
`Carnahan, 499 F.3d 803 (8th Cir. 2007) to the contrary. In Calzone, the Eighth Circuit
`found that the superintendent of the state highway patrol had a sufficient connection to
`an allegedly unconstitutional search policy because she had promulgated the policy
`pursuant to her authority to enforce a state highway regulation. Calzone, 866 F.3d
`at 870. In Missouri Protection & Advocacy Services, the Eighth Circuit held that the
`Missouri secretary of state had a sufficient connection to the enforcement of a law
`disqualifying certain persons from voting partly because state law obligated the
`secretary of state to send local election authorities the names of persons ineligible to
`vote under the law. 499 F.3d at 807. Here, by contrast, the Secretary of State simply
`provided guidance in response to questions from local election officials concerning the
`effect of EO 20‐81 on polling places; there is no law formally connecting the Secretary to
`the enforcement of EO 20‐81.
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`course of conduct arguably affected with a constitutional interest which is clearly
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`proscribed by statute, courts have found standing to challenge the statute, even absent a
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`specific threat of enforcement.”).
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`It is true that EO 20‐81 sets forth the state’s official policy that wearing a face
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`covering in compliance with EO 20‐81 does not violate § 609.735. EO 20‐81 ¶ 19. There
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`is therefore no credible threat that the Governor or the Attorney General will instigate
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`prosecution against an individual under § 609.735 for complying with EO 20‐81.7 But the
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`reverse is not true—that is, neither the Governor nor the Attorney General has an
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`official policy against prosecuting individuals for violating EO 20‐81. Nor have the
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`Hennepin defendants claimed that they have adopted an official policy not to prosecute
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`violations of EO 20‐81 or § 609.735.8 It therefore appears that plaintiffs’ alleged fear of
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`facing prosecution for either wearing or not wearing a mask is sufficient under 281 Care
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`Committee to establish standing as against these defendants.
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`b. Eleventh Amendment
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`i. Ex parte Young
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`7As discussed below, Minn. Stat. § 8.01 grants the Governor and the Attorney
`General some discretionary authority to be involved in criminal prosecutions.
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`8As noted below, there appear to be no reported cases of prosecutions under
`either § 609.735 or its predecessor since the latter was first enacted in 1923. Defendants
`do not argue that this long history of lack of prosecution deprives plaintiffs of standing,
`however.
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`The State defendants next argue that they are entitled to Eleventh Amendment
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`immunity. Under the Eleventh Amendment, “an unconsenting State is immune from
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`suits brought in federal courts by her own citizens as well as by citizens of another
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`state.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (citation and
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`quotation marks omitted). The Supreme Court recognized an exception to this
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`immunity in Ex parte Young, 209 U.S. 123 (1908). “Under the Ex Parte Young doctrine, a
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`private party can sue a state officer in his official capacity to enjoin a prospective action
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`that would violate federal law.” 281 Care Comm., 638 F.3d at 632. For this exception to
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`apply, the state official must have “some connection” with the enforcement of the
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`allegedly unconstitutional law; otherwise, the lawsuit is “merely making [the official] a
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`party as a representative of the state, and thereby attempting to make the state a party.”
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`Ex parte Young, 209 U.S. at 157.
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`In 281 Care Committee, the Eighth Circuit held that the Minnesota Attorney
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`General had a sufficient connection with the enforcement of a challenged state statute
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`based in part on the fact that, under Minn. Stat. § 8.01, a county attorney may request
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`that the Attorney General take over a criminal prosecution. 281 Care Comm., 638 F.3d
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`at 632–33; see also Reprod. Health Servs. of Planned Parenthood v. Nixon, 428 F.3d 1139, 1145
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`(8th Cir. 2005) (holding that the Missouri attorney general was potentially a proper
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`defendant because Missouri law permits the governor to direct him to aid prosecutors
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`and trial courts to direct him to sign indictments). It therefore appears that plaintiffs’
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`claims against the Attorney General may fall within Ex parte Young. Similarly, § 8.01
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`grants the Governor the authority to request the Attorney General to “prosecute any
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`person charged with an indictable offense,” indicating that claims against the Governor
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`may also fall within Ex parte Young.
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`The Court recognizes that, in a second appeal, the Eighth Circuit in 281 Care
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`Committee held that the Minnesota Attorney General was immune under the Eleventh
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`Amendment. 281 Care Comm. v. Arneson, 766 F.3d 774, 796–97 (8th Cir. 2014). By that
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`stage of the proceedings, however, a deputy attorney general had filed an affidavit
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`attesting that the Attorney General’s Office had never initiated a prosecution under the
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`challenged law, that the office was not aware of any county attorney who had asked the
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`office to do so, that the office would decline any such request, and that the office had no
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`intention of undertaking any enforcement activities. Id. On the basis of that affidavit,
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`the Eighth Circuit held that the Attorney General was immune from suit under the
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`Eleventh Amendment. Id. at 797. In this case, however, neither the Governor nor the
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`Attorney General has introduced evidence that he does not intend to use his authority
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`under § 8.01.
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`ii. Pennhurst
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`CASE 0:20-cv-01688-PJS-ECW Doc. 51 Filed 10/02/20 Page 19 of 35
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`Finally, the State defendants argue that, under the Eleventh Amendment and
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`Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984), the Court lacks
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`jurisdiction to resolve plaintiffs’ claims that EO 20‐81 violates the Minnesota
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`Constitution. The Court agrees.
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`As the Supreme Court explained in Pennhurst, the Ex parte Young exception to
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`Eleventh Amendment immunity is premised on the theory that “sovereign immunity
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`does not apply because an official who acts unconstitutionally is ‘stripped of his official
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`or representative character.’” Id. at 104 (quoting Ex parte Young, 209 U.S. at 160). This is
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`somewhat of a legal fiction, but it is necessary to vindicate federal rights and ensure the
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`supremacy of federal law. Id. at 105. That necessity does not exist in cases in which a
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`state official is alleged to be acting in violation of state law. “On the contrary, it is
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`difficult to think of a greater intrusion on state sovereignty than when a federal court
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`instructs state officials on how to conform their conduct to state law.” Id. at 106. The Ex
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`parte Young exception to Eleventh Amendment immunity therefore does not apply to
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`plaintiffs’ claims that Governor Walz and the other State defendants have violated
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`Minnesota law. See Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d 341, 345–46 (7th
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`Cir. 2020) (holding that Pennhurst barred plaintiffs’ claim that COVID‐19 restrictions on
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`religious gatherings violated state law); see also Bacon v. Neer, 631 F.3d 875, 880 (8th Cir.
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`2011) (explaining that a federal court would have no jurisdiction to enjoin the
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`defendants from enforcing state law even if their construction of state law was based on
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`an erroneous interpretation of federal law).
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`Plaintiffs’ only argument regarding Pennhurst seems to be that, although the
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`Court cannot enjoin state officials from violating state law, the Court can decide
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`whether state officials have violated state law in the course of litigating the federal
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`constitutional claims. But whether EO 20‐81 violates the Minnesota Constitution is not
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`relevant to the merits of plaintiffs’ federal claims. Moreover, the fact that the Court may
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`have jurisdiction over plaintiffs’ federal claims does not establish an exception to
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`Eleventh Amendment immunity; the Court still may not “intru[de] on state
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`sovereignty” by “instruct[ing] state officials on how to conform their conduct to state
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`law.” Pennhurst, 465 U.S. at 106. Finally, the doctrine of constitutional avoidance does
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`not override the Eleventh Amendment. See id. at 120–23.
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`To summarize, then, it appears that the Court likely has jurisdiction only over
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`plaintiffs’ federal claims against the Governor, the Attorney General, and the Hennepin
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`defendants, and only insofar as those claims rest on plaintiffs’ allegation that EO 20‐81
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`conflicts with § 609.735.
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`CASE 0:20-cv-01688-PJS-ECW Doc. 51 Filed 10/02/20 Page 21 of 35
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`2. Merits
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`a. Section 609.735 and EO 20‐81
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`As noted, plaintiffs’ main claim is that they are caught in an impossible situation:
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`EO 20‐81 makes it a crime not to wear face coverings in