Buzzell v. Tim Walz Governor of Minn.

962 N.W.2d 894

Carvin BUZZELL, Jr., Appellant,

v.TIM WALZ GOVERNOR OF MINNESOTA, et al., Respondents.

A20-1561

Court of Appeals of Minnesota.

Filed June 14, 2021

Granted September 21, 2021

Steven Anderson, Anderson Law Group PLLC, St. Paul, Minnesota (for appellant)

Keith Ellison, Attorney General, Liz Kramer, Solicitor General, Richard Dornfeld, Katherine Hinderlie, Assistant Attorneys General, St. Paul, Minnesota (for respondents)

Considered and decided by Gaïtas, Presiding Judge; Larkin, Judge; and Cochran, Judge.

COCHRAN, Judge

This case arises from respondent-governor's exercise of his authority under the Minnesota Emergency Management Act of 1996 (MEMA or the act), Minn. Stat. §§ 12.01 -.61 (2020). Pursuant to that authority, the governor issued executive orders in the spring of 2020 to address the COVID-19 pandemic, including orders restricting business operations at bars, restaurants, and other places of public accommodation.

Appellant owns and operates two businesses affected by the executive orders. Appellant brought an action in district court alleging claims arising from the executive orders. Among other claims, appellant alleged that the governor "commandeer[ed]" his property within the meaning of Minn. Stat. § 12.34, subd. 1(2), through issuance of the executive orders, and therefore he is entitled to compensation as an "owner of commandeered property" under Minn. Stat. § 12.34, subd. 2. Ruling on cross-motions by the parties, the district court dismissed all claims and denied appellant's motion for partial summary judgment as to the commandeering claim. Appellant now challenges the district court's decision only with respect to his commandeering claim against the governor under Minn. Stat. § 12.34. Because the district court correctly determined that the governor did not "commandeer" appellant's business property within the meaning of Minn. Stat. § 12.34, and that appellant is therefore not entitled to compensation as an "owner of commandeered property" under the statute, we affirm.

FACTS

The Governor's Executive Orders

Beginning in March 2020, respondent Minnesota Governor Tim Walz issued a series of executive orders aimed at slowing the spread of the COVID-19 virus. This case pertains only to the following executive orders relied on by appellant Carvin Buzzell, Jr., in his complaint, which we refer to collectively as the COVID-19-related executive orders.¹

On March 13, 2020, the governor issued Executive Order 20-01, declaring a peacetime emergency. Emerg. Exec. Order No. 20-01, Declaring a Peacetime Emergency & Coordinating Minnesota's Strategy to Protect Minnesotans from COVID-19 (Mar. 13, 2020). On March 16, the governor issued Executive Order 20-04. Emerg. Exec. Order No. 20-04, Providing for Temporary Closure of Bars, Restaurants, & Other Places of Public Accommodation (Mar. 16, 2020). That executive order temporarily closed various businesses and facilities to the public, including restaurants, bars, and other places offering food or beverage for on-premises consumption. Id. Although the order prohibited onsite consumption, it allowed businesses subject to the order to continue offering delivery and take-out services. Id. The order stated that any person who willfully violated its mandates would be guilty of a misdemeanor offense. Id. The governor extended the restrictions a number of times during the spring of 2020. See Emerg. Exec. Order No. 20-48, Extending & Modifying Stay at Home Order, Continuing Temporary Closure of Bars, Restaurants, & Other Places of Public Accommodation, & Allowing Additional Workers in Certain Non-Critical Sectors to Return to Safe Workplaces (Apr. 30, 2020); Emerg. Exec. Order No. 20-56, Safely Reopening Minnesota's Economy & Ensuring Safe Non-Work Activities during the COVID-19 Peacetime Emergency (May 13, 2020) (extending the temporary closure of bars, restaurants, and other places of public accommodation through May 31, 2020).

Beginning in May 2020, the governor began relaxing restrictions on businesses. On May 27, the governor issued Executive Order 20-63, which permitted restaurants and bars to resume outdoor dining, provided they limited outdoor occupancy to 50 people and complied with various safety precautions. Emerg. Exec. Order No. 20-63, Continuing to Safely Reopen Minnesota's Economy & Ensure Safe Non-Work Activities during the COVID-19 Peacetime Emergency (May 27, 2020).

The Present Action

Buzzell owns and operates two businesses: Timber Valley Grille and Catering in Mille Lacs County and Rum River Barn and Vineyards in Morrison County. Timber Valley Grille and Catering is a full-service bar, restaurant, and catering business. Buzzell operates Rum River Barn and Vineyards as a wedding venue. As places of public accommodation, both of Buzzell's businesses were subject to the COVID-19-related executive orders.

Buzzell commenced this action on June 2, 2020, against the governor and the Minnesota Executive Council. His complaint averred that he had "closed" his businesses in compliance with the COVID-19-related executive orders. He stated that the restrictions caused his monthly gross revenue at Timber Valley Grille and Catering to decline by 94% and that Rum River Barn and Vineyards had earned no new revenue since the governor declared the peacetime emergency. He asserted that he was "unable to keep current on his monthly costs and [was] in severe risk of losing his business by July 2020." Buzzell alleged that the defendants had "commandeer[ed]" his businesses within the meaning of Minn. Stat. § 12.34, subd. 1(2), and that he therefore must be compensated under Minn. Stat. § 12.34, subd. 2, as an "owner of commandeered property." In addition to his commandeering claim, Buzzell alleged that the defendants had "taken" his property pursuant to article I, section 13 of the Minnesota Constitution, and he further asserted a claim under article I, section 8 for "[r]edress of injuries or wrongs," which was predicated on his commandeering claim.

The governor and the Minnesota Executive Council moved to dismiss all three claims under rule 12.02(e) of the Minnesota Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The Minnesota Executive Council also moved to dismiss on the ground that it is not a legal entity subject to suit. Buzzell moved for partial summary judgment on his commandeering claim.

The district court granted the defendants’ motion to dismiss the complaint and denied Buzzell's motion for partial summary judgment. The court also dismissed the Minnesota Executive Council as a party to the action, determining that it is not a legal entity subject to suit. The district court concluded that Buzzell had not alleged a "taking" under the Minnesota Constitution because the governor's executive orders did not deprive Buzzell of all economically beneficial use of his property and, furthermore, the executive orders could not serve as the basis for a "taking" claim because the orders were aimed at protecting public health and safety. Relevant to this appeal, the district court also rejected as a matter of law Buzzell's argument that he was entitled to compensation as an "owner of commandeered property" under Minn. Stat. § 12.34, subd. 2. The district court concluded that the term "commandeer" as used in section 12.34 did not encompass the government actions alleged in the complaint. And, because the district court concluded that Buzzell's commandeering claim failed as a matter of law, it also dismissed his related claim under article 1, section 8 of the Minnesota Constitution and denied his motion for partial summary judgment.

Buzzell now appeals, challenging only the district court's decision regarding his commandeering claim under section 12.34 against the governor.

ISSUE

Does the governor "commandeer" property within the meaning of Minn. Stat. § 12.34, subd. 1(2), by issuing executive orders during a peacetime emergency that subject a business owner to operating restrictions?

ANALYSIS

This case requires us to interpret section 12.34 of MEMA and the meaning of the term "commandeer" as used in that statute. Before addressing the language of section 12.34 and the specific issue in this case, we provide an overview of MEMA and its purposes as background to our analysis.

The policy of MEMA is to (1) ensure that the state is adequately prepared to deal with natural disasters and other disasters of major size and destructiveness, (2) generally protect the public peace, health, and safety, and (3) preserve the lives and property of the people of the state. Minn. Stat. § 12.02, subd. 1. To help achieve these goals, the act confers upon the governor certain emergency and disaster powers. Id. , subd. 1(2). These powers include the authority to declare a peacetime emergency "when an act of nature ... endangers life and property and local government resources are inadequate to handle the situation." Minn. Stat. § 12.31, subd. 2(a). The powers also include the authority to declare a national security emergency. Id. , subd. 1. MEMA further grants the governor general authority to control the state's emergency management and to carry out the provisions of the act. Minn. Stat. § 12.21, subd. 1. And it provides that the governor, in performing his or her duties under the act and to effect its policy and purpose, may "make, amend, and rescind the necessary orders and rules to carry out the provisions" of the act. Id. , subd. 3(1) (emphasis added). With this background in mind, we turn to the language of section 12.34 and the specific issue before us.

Under section 12.34, subdivision 1(2), of MEMA, the governor may "commandeer, for emergency management purposes" private property. When the governor commandeers a person's property, section 12.34, subdivision 2, requires the governor to compensate the person for the government's use of that property. Section 12.34 provides the following, in relevant part:

Subdivision 1. Emergency powers. When necessary to

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