959 N.W.2d 855
N.D.2021Background
- Governor Burgum declared a COVID-19 state of emergency (E.O. 2020-03) and issued E.O. 2020-06 to limit business operations; salons were later closed by amendment (E.O. 2020-06.1) and the orders were extended by E.O. 2020-06.2.
- On April 14, 2020, Kari Riggin, a licensed cosmetologist, provided hair services at Somerset Court (an assisted living facility) and was cited for violating N.D.C.C. § 37-17.1-05 (an infraction).
- Riggin moved to dismiss, arguing the governor exceeded statutory authority, and raised constitutional challenges (right to earn a living, vagueness/overbreadth, and separation-of-powers); the district court denied the motion.
- Riggin entered a conditional guilty plea to preserve appellate review of those legal questions.
- The Supreme Court reviewed statutory interpretation and constitutional claims de novo and affirmed the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether E.O. 2020-06.2 exceeded the governor's statutory authority under N.D.C.C. ch. 37-17.1 | Governor acted within delegated emergency powers (suspend statutes, control occupancy/egress) | Governor lacks authority to "make law" via EO; statute permits only suspensions | EO did not exceed statutory authority; COVID-19 fits "disaster/emergency" and EO fell within §37-17.1-05 powers |
| Whether EO unconstitutionally restricted right to conduct business, work, and earn a living (Article I) | Restrictions were valid exercises of the state's police power to protect public health | EO infringed employment/property rights and should trigger heightened scrutiny | Riggin failed to brief a substantive constitutional argument; court treated rights as subject to police power and declined to find a violation on undeveloped record |
| Whether EO is unconstitutionally vague or overbroad | EO is a lawful emergency measure; statute and EO provide adequate guidance | EO and criminal penalties are vague/overbroad (Legislative Council memo cited) | Challenge waived for lack of adequate briefing; Legislative Council memo not controlling; court declined to find vagueness/overbreadth on presented arguments |
| Whether N.D.C.C. ch. 37-17.1 and the EO improperly delegate legislative power (separation of powers) | Legislature provided detailed purposes, definitions, limits, and retained power to terminate emergencies; delegation is proper | Statute impermissibly delegates lawmaking to executive | Statute gives adequate standards and permissible delegation to execute laws; EO did not exceed delegated authority |
Key Cases Cited
- Matter of Gomez, 2018 ND 16, 906 N.W.2d 87 (statutory interpretation reviewed de novo)
- Truelove v. State, 2020 ND 142, 945 N.W.2d 272 (constitutional claims reviewed de novo)
- State v. Cromwell, 9 N.W.2d 914 (N.D. 1943) (describing scope of police power)
- Obrigewitch, 356 N.W.2d 105 (N.D. 1984) (issues unsupported by briefing are waived)
- Kelsh v. Jaeger, 2002 ND 53, 641 N.W.2d 100 (standards for permissible delegation)
- Stutsman Cty. v. State Historical Soc’y of N.D., 371 N.W.2d 321 (distinction between legislative and executive powers)
- Ralston Purina Co. v. Hagemeister, 188 N.W.2d 405 (delegation and fact-ascertainment principles)
- Ferch v. Housing Auth. of Cass Cty., 59 N.W.2d 849 (ascertainment of facts to trigger law not unconstitutional delegation)
- Bruner v. Hager, 547 N.W.2d 551 (role of the court to interpret laws)