956 N.W.2d 392
N.D.2021Background
- In April 2020 Somerset Court, LLC (an assisted-living facility with an in-house salon) and Kari Riggin (a licensed cosmetologist contracting to operate the salon) sued the Governor, the ND Health Department, and the State Health Officer challenging executive orders that closed salons during COVID-19 and then allowed phased reopening under conditions.
- They sought declaratory and injunctive relief, arguing the executive orders exceeded the Governor’s statutory authority, invaded legislative prerogative, and violated state and federal rights to conduct business and earn a living.
- The plaintiffs moved for summary judgment; the State opposed and moved to dismiss. The district court denied plaintiffs’ declaratory relief and dismissed the action, noting the challenged executive orders had been superseded and plaintiffs were authorized to operate.
- The district court also addressed the merits but alternatively concluded the claims were moot because the orders were superseded and no basis showed the orders would evade review if reissued.
- On appeal the plaintiffs raised multiple challenges to the Governor’s authority and urged strict scrutiny; however they did not adequately contest the district court’s mootness ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Executive Orders exceeded the Governor’s statutory/constitutional power | Executive orders exceeded statutory authority and improperly intruded on legislative power; curtailed right to earn a living | Governor and State Health Officer acted within constitutional and statutory emergency powers | Court affirmed dismissal but did not reach merits because plaintiffs abandoned challenging the district court’s mootness finding; dismissal affirmed as moot |
| Whether orders implicated fundamental rights triggering strict scrutiny | Orders unconstitutionally denied rights to conduct business, employment, and earn a living, requiring strict scrutiny | Defendants did not primarily contest on strict‑scrutiny ground before appellate brief; emphasized authority to act in emergency | Court did not apply strict scrutiny; issue not considered because of mootness and insufficient appellate briefing |
| Whether declaratory judgment should have been entered and enforced by writ | Plaintiffs sought declaratory relief as matter of law and enforcement via writ | State asked for dismissal and opposed declaratory relief | District court denied declaratory judgment and dismissed; appellate court affirmed dismissal on mootness grounds |
| Justiciability / Mootness (capable of repetition/evading review) | Plaintiffs argued the matter is not moot because new executive orders and ND Smart Restart could reimpose similar restrictions and evade review | Defendants pointed out the challenged orders were superseded and plaintiffs were authorized to operate; no showing orders would evade review | Court held the claims were moot; plaintiffs failed to adequately contest mootness on appeal and thereby abandoned that challenge; affirmed dismissal |
Key Cases Cited
- Poochigian v. City of Grand Forks, 912 N.W.2d 344 (N.D. 2018) (courts decline to issue advisory opinions; mootness doctrine)
- Gosbee v. Bendish, 512 N.W.2d 450 (N.D. 1994) (mootness and justiciability principles)
- Envtl. Driven Solutions, LLC v. Dunn Cty., 890 N.W.2d 841 (N.D. 2017) (summary-judgment standard for declaratory-judgment actions)
- Hale v. State, 818 N.W.2d 684 (N.D. 2012) (summary judgment standard)
- In re J.J.T., 915 N.W.2d 106 (N.D. 2018) (issues waived if inadequately briefed)
- Riemers v. City of Grand Forks, 723 N.W.2d 518 (N.D. 2006) (abandonment of arguments on appeal)