CASE 0:20-cv-01275-DWF-BRT Document 12 Filed 06/04/20 Page 1 of 8

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Scott W. Johnson, Civil File No. 20-cv-01275-DWF/BRT

Plaintiff,

vs. DECLARATION OF SCOTT W.

JOHNSON IN SUPPORT OF
Jan Malcolm in Her Official and Individual MOTION FOR PRELIMINARY
Capacities; and the Minnesota Department INJUNCTION
of Health,

Defendants.

I, Scott W. Johnson, declare as follows:

1. I am an attorney and journalist who has written professionally for more

than 25 years on politics, law, and public policy issues including income inequality,

income taxes, campaign finance reform, affirmative action, welfare reform, and race in

the criminal justice system. My career as an attorney includes a clerkship with the Eighth

Circuit (1979-1981), work as an associate and partner at Faegre & Benson (1981-1997)

and as corporate counsel for TCF Financial Corporation and Delta Dental of Minnesota

(1997-2014). I served as senior vice president and regional counsel for TCF Minnesota.

I retired from the practice of law in 2014.

2. In 1993, I commenced writing with my Faegre partner John

Hinderaker. I published articles together with Mr. Hinderaker under a joint byline and by

myself under my own byline in magazines including National Review and the Weekly

Standard as well as newspapers including the New York Times, the New York Post,

Minneapolis’s Star Tribune, and the St. Paul Pioneer Press.

 CASE 0:20-cv-01275-DWF-BRT Document 12 Filed 06/04/20 Page 2 of 8

3. In 2002 Mr. Hinderaker and I continued our writing partnership online

through the establishment of the site Power Line (powerlineblog.com). Along with two

other contributors, we report and comment on the news from a conservative

perspective. Since Mr. Hinderaker and I founded the site over Memorial Day weekend

2002, I have written for Power Line virtually every day over the past 18-plus years. In

that time, it has become one of the most successful sites of its kind on the

Internet. Insofar as we can tell from our software, Power Line recorded its one-billionth

page-view since 2006 earlier this year. Attached as Exhibit A, is a true and accurate

copy of the Power Line post by John Hinderaker reflecting this milestone.

4. During my time writing for Power Line, I have reported and broken many

stories of local and national significance on the site. In 2004, for example, I had a

prominent role in exposing the journalistic fraud that became known as Rathergate.

Mostly as a result of our work on that story, Time named Power Line its first Blog of the

Year in its 2004 year-end issue— an award it promptly retired. We were accordingly

Time’s first and only Blog of the Year.

5. I have brought my professional background as a lawyer to bear in my

coverage of politics, law, and public policy. In the past few years, for example, I have

covered high profile trials in Hennepin County District Court and in the Minnesota

federal district court on Power Line. I am an accredited member of the media covering

the United States District Court for the District of Minnesota.

6. Most recently, I have devoted substantial attention to the State of

Minnesota’s response to the coronavirus outbreak. Among other things, I began covering

2
 CASE 0:20-cv-01275-DWF-BRT Document 12 Filed 06/04/20 Page 3 of 8

the daily briefings held by the Minnesota Department of Health (“MDH”). These

briefings provide updated data about coronavirus cases, provide information about the

strategies the MDH is using to combat the coronavirus, and respond to questions from

journalists.

7. Due to Governor Walz’s March 25, 2020 Executive Order 20-20, ordering

Minnesotans to stay at home, the MDH briefings have been held virtually via an internet-

based teleconference system. The teleconference audio is broadcast live on television

throughout Minnesota and on the internet via the MDH website.

8. Due to the virtual and remote nature of the MDH daily briefings, the MDH

prepared a separate telephone conference line that journalists could use to ask questions

of those presenting at the MDH daily briefings (the “MDH Conference Line”).

9. The MDH Conference Line is not available to the public at large, and

journalists desiring access to the Conference Line are required to request access from the

MDH, which then adds them to a distribution list of journalists authorized to ask

questions during the daily briefings.

10. Participating journalists receive email notification of each day’s call,

advising them of a telephone number to call, and an access code to enter, which allows

them to participate on the conference call.

11. Access to the MDH Conference Line is important because it provides a

forum for reporters to ask questions of those public officials presenting at the MDH daily

briefing. The questions and answers are part of the MDH briefing broadcast. To ask

questions, reporters on the MDH Conference Line enter a telephone queue.

3
 CASE 0:20-cv-01275-DWF-BRT Document 12 Filed 06/04/20 Page 4 of 8

12. Based on my experience on the MDH Conference Line, reporters who were

not called on from the queue to ask their questions during the daily briefing were also

invited to submit written questions to the MDH following the briefing.

13. Identifying my affiliation with Power Line, I requested access to the MDH

Conference Line on April 9, 2020, and was added to the distribution list on April 11,

2020. A true and correct copy of my email requesting access to the MDH Conference

Line is attached as Exhibit B. A true and correct copy of an email from MDH granting

me access to the MDH Conference Line is attached as Exhibit C. In granting me access,

MDH did not ask me for any information about my qualifications, or the readership or

distribution of Power Line.

14. While on the distribution list, I received emails from MDH that provided

the information necessary to access the MDH Conference Line for the daily briefings.

While I had access to the MDH Conference Line, I asked a number of questions

following the MDH daily briefing, and on at least two occasions published MDH’s

responses to my questions in my posts covering the coronavirus on Power Line.

Attached hereto as Exhibit D is a true and correct copy of an email in which I asked

questions of MDH following the daily briefing. Attached hereto as Exhibit E is a true

and correct copy of a post I published on Power Line in which I quote the MDH response

to my questions. Quoting the MDH response verbatim allowed me to provide readers

insight into MDH’s thinking related to COVID-19.

15. On April 27, 2020, after attending the MDH daily briefing via the MDH

Conference Line, I sent an email to MDH asking two follow-up questions regarding that

4
 CASE 0:20-cv-01275-DWF-BRT Document 12 Filed 06/04/20 Page 5 of 8

afternoon’s presentation. A true and correct copy of my April 27 email to MDH

following the daily briefing is attached as Exhibit F. In that email I asked the following

two questions:

Question: Referring to the 286 total deaths to date, every

decedent under age 70 has died in long-term care or similar
setting. The youngest person to die outside long-term care was
in his 70’s. Why is it necessary to close the schools and shut
down the state to protect the at-risk population?

Follow-up: How many decedents were moved from nursing

home to hospitals prior to their death? Would their death be
included in the long-term care number not?

16. I received a response to these questions on April 27, 2020. The MDH

responded to the first question as follows:

We have had deaths in people younger than 70 and certainly

many cases in all age groups. It is necessary to take the
community mitigation measures we have because all
Minnesotans are at risk from COVID 19, as none of us has
immunity. Some people, like those in long-term-care and those
with underlying health conditions, are far more at risk than
others. But if we didn’t reduce transmission in the community
as we have with the stay at home order, we would see far more
disease circulating and many times more serious cases that
would quickly overwhelm our health care system. Then, even
less-vulnerable people would not be able to get the care they
needed, such as intensive care, ventilators, etc., so we would
see far more deaths in people outside of the very frail and
elderly. That is what has happened in places like Italy and New
York.

17. The MDH responded to the second follow-up question stating:

Just as are cases, deaths are recorded by place of residence. So

if someone’s place of residence prior to their death was listed
as a long-term care facility, regardless of whether they were

5
 CASE 0:20-cv-01275-DWF-BRT Document 12 Filed 06/04/20 Page 6 of 8

hospitalized prior to their death, they would be recorded as a

death in a long-term-care resident.

18. On April 28, 2020, the MDH did not send me access information for the

MDH Conference Line. I immediately wrote to MDH staff to ask why I was excluded

from the MDH Conference Line. A true and correct copy of my April 28, 2020 email

seeking this information is attached as Exhibit G. I received no response.

19. On April 29, 2020, the MDH did not send me access information for the

MDH Conference Line. I again asked why I was excluded from the MDH Conference

Line. A true and correct copy of my April 29, 2020 email asking for this information is

attached as Exhibit H. Again, I did not receive a response.

20. On May 2, 2020, I again sent an email asking the MDH why I had been

excluded from the MDH conference line. A true and correct copy of this. May 2, 2020

email is attached as Exhibit I. Again, I did not receive a response.

21. On May 11, 2020, I sent an email asking the MDH why I had been

excluded from the MDH Conference Line. A true and correct copy of this May 11, 2020

email is attached as Exhibit J. Again, I did not receive a response.

22. I also called Mr. Schommer on two or three occasions to ask why I was

excluded from the MDH Conference Line. On each occasion, I left voicemail messages

with Mr. Schommer. Mr. Schommer never returned my call or otherwise responded to

my inquiries.

6
 CASE 0:20-cv-01275-DWF-BRT Document 12 Filed 06/04/20 Page 7 of 8

23. Since April 27, the MDH has not provided me with access to the MDH

Conference Line, and has not provided me with any explanation for why they excluded

me.

24. Despite my exclusion from the MDH Conference Line, I attempted to ask

at least two questions of the MDH about the daily briefings following my exclusion, but I

never received a response. A true and correct copy of an email I sent asking a question

following my exclusion is attached as Exhibit K. See also Exhibit I.

25. I filed Minnesota Data Practices Act requests with the MDH and with

Governor Walz seeking to ascertain the basis of my exclusion from the daily press

briefings. A true and correct copy of my Data Practices Act Request is attached as

Exhibit L. In the Governor’s response to my requests, I learned that on April 27 MDH

press officer Michael Schommer forwarded my questions to Jeremy Drucker and

Emmalynn Bauer, employees of Governor Walz’s office, and stated, “Flagging as an FYI

for future discussion.” A true and correct copy of the April 27 email from Mr. Schommer

to Mr. Drucker and Ms. Bauer is attached as Exhibit M.

26. On May 19, 2020, Mr. Schommer responded by email to an inquiry from

Washington Free Beacon reporter Collin Anderson for a story on my exclusion from the

MDH daily briefings Conference Line. A true and correct copy of this email is attached

as Exhibit N. Mr. Schommer’s response clearly implies that I was excluded from the

MDH Conference Line because I am allegedly not a professional journalist. In my

opinion, this is both false and defamatory. It is a false pretext that cannot survive serious

scrutiny.

7
 CASE 0:20-cv-01275-DWF-BRT Document 12 Filed 06/04/20 Page 8 of 8

27. MDH responded to my Data Practices Act request after the filing of my

Complaint in this lawsuit. The MDH’s response did not include any broadly applicable

policies limiting the number of journalists on the MDH Conference Line.

28. I inferred from all the circumstances set forth above that the MDH excluded

me from MDH Conference Line based on its disapproval of the viewpoint expressed in

my questions and/or on Power Line. When I came to this conclusion following Mr.

Schommer’s email to Collin Anderson, I promptly sought and engaged counsel to resolve

this issue as expeditiously as possible.

I hereby declare under penalty of perjury that the foregoing statements are true and

correct to the best of my knowledge, information and belief.

Dated:0 06/04/2020 s/ Scott W. Johnson

Scott W. Johnson