Free Minn. Small Bus. Coal v. Walz, A20-1161

Free Minnesota Small Business Coalition, et al., Appellants, v. Tim Walz, Respondent.

A20-1161

STATE OF MINNESOTA IN COURT OF APPEALS

April 26, 2021

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

Affirmed

Larkin, Judge

Ramsey County District Court

File No. 62-CV-20-3507

Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota (for appellants)

Keith Ellison, Attorney General, Liz Kramer, Solicitor General, Christina M. Brown, Thomas S. Madison, Assistant Attorneys General, St. Paul, Minnesota (for respondent)

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

NONPRECEDENTIAL OPINION

LARKIN, Judge

Appellants challenge the district court's denial of their petition for a writ of quo warranto and dismissal of their claims contesting respondent-governor's declaration of a peacetime emergency and issuance of emergency executive orders. Appellants argue that the governor's creation of criminal penalties in his executive orders violates the separation-of-powers doctrine, that the statute under which the governor exercised his emergency powers creates an unconstitutional legislative veto, and that the district court erred by concluding that the state-legislator appellants do not have standing to pursue the petition. We conclude that appellants forfeited their argument regarding criminal penalties because they did not raise it in the district court and that appellants' legislative-veto claim is not justiciable. We therefore do not consider the merits of those arguments, which renders the issue of state-legislator standing immaterial. We affirm.

FACTS

This appeal stems from respondent Minnesota Governor Tim Walz's use of peacetime emergency powers and issuance of executive orders during the COVID-19 pandemic. Appellants are the Free Minnesota Small Business Coalition, several individual businesses in Minnesota, and several members of the Minnesota Senate and Minnesota House of Representatives.

On March 13, 2020, the governor declared a peacetime emergency based on the COVID-19 pandemic. The governor then issued numerous executive orders based on the peacetime emergency. By the end of May 2020, the governor had issued over 60 such emergency executive orders. Those orders closed public schools; closed bars, restaurants, and other places of public accommodation; and prohibited Minnesotans from leaving their homes except for certain activities. In Emergency Executive Order 20-63, the governor extended the closure of certain places of public accommodation and imposed significantrestrictions on businesses. He also ordered that any willful violation of that executive order is a misdemeanor offense and that a business owner's requirement or encouragement of an employee to violate that executive order is a gross-misdemeanor offense.

On May 28, 2020, appellants petitioned for a writ of quo warranto, alleging that the governor had exceeded his legal authority. Appellants sought to enjoin the governor from enforcing his emergency executive orders and from issuing new orders. Appellants argued that the executive orders violate the separation-of-powers doctrine because they constitute exercises of pure legislative authority; that Minn. Stat. § 12.31, subd. 2 (2020), establishes an unconstitutional legislative veto; and that Minn. Stat. § 12.31, subd. 2, does not authorize the governor to invoke emergency powers for public-health purposes. The district court ordered the governor to show cause why the court should not grant appellants' petition for a writ of quo warranto. Shortly afterward, the governor moved the district court to dismiss appellants' action for failure to state a claim upon which relief can be granted under Minn. R. Civ. P. 12.02(e) and for lack of subject-matter jurisdiction under Minn. R. Civ. P. 12.02(a).

The district court denied appellants' petition for a writ of quo warranto and granted the governor's motion to dismiss for failure to state a claim. In doing so, the district court concluded that the petitioning members of the Minnesota Senate and Minnesota House of Representatives do not have standing to pursue the petition. This appeal follows.

DECISION

The governor declared a peacetime emergency and issued related executive orders under the Minnesota Emergency Management Act of 1996 (MEMA), Minn. Stat. §§ 12.01-.61 (2020). Under MEMA, the governor may declare a peacetime emergency "only when an act of nature, a technological failure or malfunction, a terrorist incident, an industrial accident, a hazardous materials accident, or a civil disturbance endangers life and property and local government resources are inadequate to handle the situation." Minn. Stat. § 12.31, subd. 2(a).

"When the governor declares a peacetime emergency, the governor must immediately notify the majority and minority leaders of the senate and the speaker and majority and minority leaders of the house of representatives." Id. A peacetime emergency must not last more than five days unless the Executive Council extends it for up to 30 days. Id. "The Executive Council consists of the governor, lieutenant governor, secretary of state, state auditor, and attorney general." Minn. Stat. § 9.011, subd. 1 (2020).

The legislature may terminate a peacetime emergency extending beyond 30 days by a majority vote of each house. Minn. Stat. § 12.31, subd. 2(b). If the governor determines a need to extend the peacetime emergency beyond 30 days and the legislature is not in session, then the governor must immediately convene both houses. Id.

The Executive Council approved the governor's initial declaration of a peacetime emergency and extended it to 30 days. Since then, the governor has repeatedly extended the peacetime emergency after the expiration of 30 days, and the Executive Council has approved its extension each time. The legislative houses have had opportunities to produce the majority votes necessary to terminate the peacetime emergency in both regular and special legislative sessions. But the legislature has not done so.

Appellants sought relief from the governor's peacetime-emergency executive orders by petitioning the district court for a writ of quo warranto. A writ of quo warranto is used to "challenge official action not authorized by law." Save Lake Calhoun v. Strommen, 943 N.W.2d 171, 174 (Minn. 2020). It is "designed to test whether a person exercising power is legally entitled to do so." State ex rel. Graham v. Klumpp, 536 N.W.2d 613, 614 n.1 (Minn. 1995) (quotation omitted). "The writ requires an official to show before a court of competent jurisdiction by what authority the official exercised the challenged right or privilege of office." State ex rel. Sviggum v. Hanson, 732 N.W.2d 312, 318 (Minn. App. 2007). As recently as May 2020, the Minnesota Supreme Court refused to abolish the common-law writ of quo warranto. Save Lake Calhoun, 943 N.W.2d at 176. The supreme court reasoned that "[t]he underlying reason for the writ—to rein in government officials who exceed their constitutional or statutory authority—remains as valid as ever." Id.

A petition for a writ of quo warranto may be dismissed for "failure to state a claim upon which relief can be granted." Minn. R. Civ. P. 12.02(e); see Save Lake Calhoun, 943 N.W.2d at 175 (reviewing district court's dismissal of a petition for a writ of quo warranto for failure to state a claim upon which relief could be granted). We review such a dismissal de novo. Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 606 (Minn. 2014). We "accept the facts alleged in the [petition] as true and construe all reasonable inferences in favor of the nonmoving party." Id. But we are not bound by legal conclusions in a petition. Hebert v. City of Fifty Lakes, 744 N.W.2d 226, 235 (Minn. 2008). "[A] pleading will be dismissed only if it appears to a certainty that no facts, which could be introduced consistent with thepleading, exist which would support granting the relief demanded." Bahr v. Capella Univ., 788 N.W.2d 76, 80 (Minn. 2010) (quotation omitted).

Appellants challenge the district court's dismissal of their petition for a writ of quo warranto. They raise three primary issues on appeal: (1) whether the governor's creation of criminal penalties in his executive orders violates the separation-of-powers doctrine, (2) whether the statute under which the governor exercised his emergency powers creates an unconstitutional legislative veto, and (3) whether the district court erred by concluding that the state-legislator appellants do not have standing to pursue the petition. We turn to those issues.

I.

Appellants contend that MEMA violates the separation-of-powers doctrine. The separation-of-powers principle is embodied in article III of the Minnesota Constitution, which states: "The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution." Minn. Const. art. III, § 1.

Minn. Const. art. III, § 1, includes three elements: a distributive clause that identifies the three branches; a prohibitive clause that prevents one branch from exercising the powers of another branch; and an exception clause, which allows one branch to exercise another type of power when the constitution expressly provides for it. State ex rel. Patterson v. Bates, 104 N.W. 709, 712 (Minn. 1905). "Together, these clauses create notmerely a separation of functions, but also, importantly, a balance of powers among the branches of our government." Ninetieth Minn. State Senate v. Dayton, 903 N.W.2d 609, 629 (Minn. 2017) (Anderson, J., dissenting). "[E]ach branch has areas of autonomy and also has available certain tools to check another branch from exceeding its power. A proper balance of powers among the...