State v. Riggin

959 N.W.2d 855

STATE of North Dakota, Plaintiff and Appellee

v.Kari Leanne RIGGIN, Defendant and Appellant

No. 20200293

Supreme Court of North Dakota.

FILED MAY 20, 2021

Ethan R. Lee, Assistant State's Attorney, Minot, ND, for plaintiff and appellee.

Lynn M. Boughey, Mandan, ND, for defendant and appellant.

Jensen, Chief Justice.

[¶1] Kari Leanne Riggin appeals from a criminal judgment entered after she conditionally pled guilty to a violation of Executive Order 2020-06, an infraction. Riggin challenges the Governor's authority to restrict her ability to engage in cosmetology services within an assisted living facility as part of the State's response to a declared state of emergency. We affirm.

I

[¶2] On March 13, 2020, Governor Doug Burgum declared a state of emergency and activated the North Dakota State Emergency Operations Plan via Executive Order ("E.O.") 2020-03. Governor Burgum's declaration of a state emergency was in response to the public health crisis resulting from the novel coronavirus ("COVID-19").

[¶3] Following the declaration of a state of emergency, Governor Burgum issued a number of executive orders intended to control and prevent the spread of COVID-19. On March 19, 2020, Governor Burgum issued E.O. 2020-06 which closed certain business establishments in North Dakota, limited physical access to other business establishments in North Dakota, directed state agencies and offices to regulate staffing, and limited access to the North Dakota State Capitol by appointment only. These restrictions were set to expire on April 6, 2020. On March 27, 2020, E.O. 2020-06 was amended as E.O. 2020-06.1 to include the closure of salons and ordering licensed cosmetologists to cease operations. On April 1, 2020, Governor Burgum issued E.O. 2020-06.2 which extended the previous orders to April 20, 2020.

[¶4] On April 14, 2020, law enforcement received a report that Kari Riggin, a licensed cosmetologist, was operating a hair salon at Somerset Court, an assisted living facility, in Minot, North Dakota. Riggin was alleged to be in violation of E.O. 2020-06.2 by providing cosmetology services. When officers arrived at the facility, Riggin was providing a cosmetology service to a client and admitted to performing cosmetology services at that location subsequent to the issuance of E.O. 2020-06.2. Riggin was cited and charged with violation of a governor's declaration, in violation of N.D.C.C. § 37-17.1-05, an infraction.

[¶5] The district court denied Riggin's motion to dismiss the citation after finding the governor holds the sole responsibility for managing disasters and emergencies, and the governor's means of managing an emergency is through the use of an executive order. Following the denial of her motion to dismiss, Riggin entered a conditional guilty plea reserving her right to appeal.

II

[¶6] On appeal, Riggin challenges the governor's executive order as it pertains to closing the salon at Somerset Court and preventing Riggin from performing cosmetology services. First, Riggin argues the governor exceeded the statutory authority delegated to him through N.D.C.C. ch. 37-17.1. Second, Riggin argues E.O. 2020-06.2 was unconstitutional because it restricted her right to conduct business, engage in employment, and earn a living. Third, Riggin contends the executive order is unconstitutionally vague and overbroad. Finally, Riggin argues the executive order is unconstitutional because it violates the separation of powers required between the legislative branch and the executive branch.

[¶7] Riggin's challenges either require this Court to interpret statutory language or are contentions her constitutional rights have been violated. "This Court reviews the district court's interpretation of a statute de novo." Matter of Gomez , 2018 ND 16, ¶ 11, 906 N.W.2d 87. This Court reviews "claims that a defendant's constitutional rights were violated de novo." Truelove v. State , 2020 ND 142, ¶ 8, 945 N.W.2d 272.

III

[¶8] Riggin argues E.O. 2020-06.2 exceeded the governor's statutory authority because a plain reading of N.D.C.C § 37-17.1-05 does not permit the governor to enact "laws through executive order, only suspend them." Riggin does not argue the statute is ambiguous.

[¶9] Our Constitution vests our governor with "executive power" and responsibility to see the state's laws are "faithfully executed." N.D. Const. art. V, §§ 1 and 7. As the state's executive officer, the legislature has provided the governor with emergency management powers under the North Dakota Disaster Act of 1985 ("the Act") which establishes the framework for management of disasters and emergencies in North Dakota. N.D.C.C. ch. 37-17.1.

[¶10] Section 37-17.1-05, N.D.C.C., entitled "The governor and disasters or emergencies—Penalty," clarifies the nature of the governor's powers and responsibilities in disaster situations. The governor is responsible for minimizing or averting the adverse effects of a disaster or emergency. N.D.C.C. § 37-17.1-05(1). The governor may, by proclamation or executive order, declare a state of disaster or emergency upon finding a disaster has occurred or a state of emergency exists. N.D.C.C. § 37-17.1-05(2) and (3). The state of emergency continues until the governor finds the threat or danger has passed or the emergency conditions no longer exist. N.D.C.C. § 37-17.1-05(3).

[¶11] Upon the declaration of a state of emergency, the Act vests with the governor emergency management powers, including the following:

Suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in managing a disaster or emergency.

...

Control ingress and egress in a designated disaster or emergency area, the movement of persons within the area, and the occupancy of premises therein.

N.D.C.C. § 37-17.1-05(6)(a) and (g). As a counterbalance to the exercise of the governor's powers under the Act, the legislative assembly may terminate a state of disaster or emergency at any time. N.D.C.C. § 37-17.1-05(3).

[¶12] The Act applies to "disasters" and "emergencies." A "disaster" is defined as "the occurrence of widespread or severe damage, injury, or loss of life or property resulting from any natural or manmade cause, including [...] epidemic." N.D.C.C. § 37-17.1-04(2). An "emergency" is defined as "any situation that is determined by the governor to require state or state and federal response or mitigation actions to protect lives and property, to provide for public health and safety, or to avert or lessen the threat of a disaster." N.D.C.C. § 37-17.1-04(4).

[¶13] COVID-19 created circumstances falling within the statutory definitions of both a disaster and an emergency. The legislature expressly included within the definition of disaster an epidemic, which includes COVID-19. The legislature expressly delegated to the governor the power to determine whether the situation was an emergency requiring "state or state and federal response ...." Finally, the legislature included within the delegation of authority the ability of the governor to "[c]ontrol ingress and egress in a designated disaster or emergency area, the movement of persons within the area, and the occupancy of premises therein." We conclude E.O. 2020-06.2 did not exceed the statutory authority provided to the governor under N.D.C.C. § 37-17.1-05 as it relates to the closure of salons and ordering licensed cosmetologists to cease operations.

IV

[¶14] Riggin argues E.O. 2020-06.2 was unconstitutional because it restricted her right to conduct business, engage in employment, and earn a living. The powers to declare a state of emergency and control ingress and egress delegated to the governor under the Act are grounded in the state's inherent police powers. See State v. Cromwell , 72 N.D. 565, 9 N.W.2d 914 (1943). In exploring the boundaries of the state's police power this Court has recognized the following:

The term ‘police power’, as understood in American constitutional law, means simply the power to impose such restrictions upon private rights as are practically necessary for the general welfare of all. And it must be confined to such restrictions and burdens as are thus necessary to promote the public welfare, or in other words, to prevent the infliction of public injury.... The development of the law relating to the proper exercise of the police power of the state clearly demonstrates that it is very broad and comprehensive, and is exercised to promote the general welfare of the state, as well as its health and comfort. And the limit of this power cannot and never will be accurately defined, and the courts have never been willing, if able, to circumscribe it with any definiteness. And this court, considering the police power, has said that it is the power inherent in every sovereignty, the power to govern men and things, under which power, the legislature may, within constitutional limitations, not only prohibit all things hurtful to the comfort, safety, and welfare of society, but prescribe regulations to promote the public health, morals, and safety and add to the general public convenience, prosperity, and welfare.

Id. at 575-76, 9 N.W.2d 914 (internal citations and quotation marks omitted).

[¶15] Riggin's challenge to the restriction on her business is separated into two arguments within her briefing. First, Riggin argues that this Court should apply strict scrutiny to the restrictions imposed by E.O. 2020-06.2. Second, she argues E.O. 2020-06.2 violates article I, sections 1 and 7, of the North Dakota Constitution.

[¶16] Riggin contends this Court should apply strict scrutiny to the restrictions imposed by E.O. 2020-06.2. Other than providing an argument as to why strict scrutiny should apply, Riggin offers no supporting argument regarding why or how this Court...