I brought a section 1983 lawsuit against Minnesota Health Commissioner Jan Malcolm and MDH Communications Director Michael Schommer for excluding me from the MDH press briefings on and after April 27. I alleged that they excluded me on political grounds in violation of the First Amendment. They moved to dismiss the lawsuit on the ground that I failed to state a claim upon which relief can be granted. I moved for a preliminary injunction ordering them to reinstate me to the press briefing conference line.
My lawsuit stands at the intersection of politics, public policy, COVID-19 and the First Amendment. We put in evidence that brought the case right into the office of Governor Walz. I think it’s an important case, yet it has attracted no local media interest. My reports on the case in this series have been a Power Line exclusive. The Washington Free Beacon’s Collin Anderson covered my exclusion here and follows up today here.
The case was assigned to Judge Donovan Frank. On June 18 Judge Frank held a two-hour hearing by Zoom. I reported on the hearing here. Judge Frank denied both motions. I posted Judge Frank’s ruling here.
Taking the allegations of my amended complaint as true, Judge Frank held that my First Amendment claims against Malcolm and Schommer are legally sufficient. He applied the First Amendment limited public forum analysis on which my lawsuit was predicated. If Malcolm and Schommer excluded me from the calls on political grounds, that exclusion was illegal. See memorandum and order at 12-14 & note 4.
Judge Frank also denied my motion for preliminary injunction. Insofar as I agreed that Malcolm and Schommer can’t be compelled to take my questions or respond, Judge Frank ruled, I had not made out the element of irreparable harm requiring the court’s exercise of equitable power.
At the conclusion of his ruling Judge Frank urged the parties to settle the case. Magistrate Judge Becky Thorson subsequently convened a settlement conference via Zoom. Although we didn’t settle the case that day, I believe she persuaded defendants to get serious about settlement. We continued to negotiate and arrived at a settlement, the signed copy of which was delivered to me yesterday. I have embedded a copy of the settlement agreement signed by defendants at the bottom of this post.
Under the settlement defendants have agreed to reinstate me to the Department of Health press briefing conference calls. We served a draft copy of my complaint on defendants before the lawsuit was filed and told them that was all I wanted. They told me to pound sand. According to them, it was their show and they had no obligation to treat me like the reporters otherwise admitted to the circle of love on their briefing conference calls.
They have now relented. In addition, they have agreed to answer three written questions from me by email each week so long as the era of one-man rule persists. In exchange, I have agreed to give up my claims for damages and attorney’s fees and to dismiss the lawsuit.
I owe the Dorsey and Whitney firm’s agreement to undertake the case and the result achieved to the head of the firm’s Minneapolis Litigation Group, Theresa Bevilacqua (photo at right). Theresa enlisted Dorsey associate Ian Blodger to help me on the case. Theresa and Ian did a fantastic job on my behalf. Theresa is an incredibly skilled advocate. Watching Theresa argue the case to Judge Frank against the very capable Assistant Attorney General the Minnesota Attorney General’s office assigned to it, I developed a deep respect and admiration for Theresa’s professionalism. In a case that I thought might affect my own professional standing, I was proud to have Theresa and Ian represent me.
I want to add a This Is Your Life note on the case. I came to Theresa with the legal analysis on which to bring my claims because I briefed and argued the controlling case with John Hinderaker before the Eighth Circuit en banc in 1997 when we were partners in private practice. The case is Burnham v. Ianni.
The Burnham case remains the law of the circuit. Judge Frank was therefore bound to follow it, if it applied, as any Eighth Circuit panel to which the case might have been appealed would have been bound. If it applied, all we had to do was prove that defendants expelled me from the briefings for political reasons, and I had gathered strong circumstantial evidence that they had done so before we filed the lawsuit. It was only going to get better.
On the other side of the settlement ledger, defendants have no obligation to call on me in the briefings. However, they may call on me, and the agreement limits my conduct in the event that they do. They are afraid I might embarrass them gratuitously. I never contested either of these points. In my opinion, these provisions reflect poorly on defendants.
Moreover, defendants successfully excluded me from the briefings and remained out of email contact with me from April 27 to today. That must have been worth something to them even if they caved at the end.
I am leaving the lawsuit behind, but I have Judge Frank’s ruling applying the relevant First Amendment principles in hand. I got out of the lawsuit everything I wanted. I should be able to add value to my Power Line coverage of the epidemic in Minnesota under the terms of the settlement. My take on the settlement is therefore: I won, they lost.