Sоmerset Court, LLC, and Kari Riggin v. Doug Burgum, Governor for the State of North Dakota, in his official capacity, the North Dakota Health Department, Dirk Wilke, North Dakota State Health Officer, in his official capacity
No. 20200292
IN THE SUPREME COURT STATE OF NORTH DAKOTA
MARCH 24, 2021
2021 ND 58
FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT MARCH 24, 2021 STATE OF NORTH DAKOTA
Plaintiffs and Appellants
Defendants and Appellees
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Daniel J. Borgen, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Lynn M. Boughey, Mandan, ND, for plaintiffs and appellants.
James E. Nicolai, Deputy Solicitor General, Bismarck, ND, for defendаnts and appellees.
McEvers, Justice.
[¶1] Somerset Court, LLC, and Kari Riggin (“Appellants“) appeal from a district
I
[¶2] This case began as a challenge to the Governor‘s statutory powers in issuing executive orders during the COVID-19 pandemic relating to the operations of certain North Dakota businesses.
[¶3] Relevant to this appeal, Executive Orders 2020-06.2, 2020-06.3, and 2020-06.4 essentially closed salons operated by licensed cosmetologists between March 28, 2020, and May 1, 2020. Executive Order 2020-06.4 provided that on or after May 1, 2020, businesses were allowed to reopen under cоnditions for industry-specific standards, including standards for salons operated by cosmetologists.
[¶4] In April 2020, Somerset, an assisted living facility with an in-house salon, and Riggin, a licensed cosmetologist operating the salon as an independent contractor, sued the Governor, the North Dakota Health Department, and the North Dakota State Health Officer, seeking declaratory and injunctive relief. The Appellants assert the executive orders prohibited Somerset and Riggin from engaging in their business and profession and placed limitations as to their business and professiоn. They sought a declaratory judgment and contend the executive orders went beyond the Governor‘s statutory authority, improperly invaded legislative prerogative, and unconstitutionally denied their state and federal constitutional rights to conduct business, to engage in employment, and to earn a living.
[¶5] Somerset and Riggins moved the district court for summary judgment. The State opposed their motion and also requested the court to grant summary judgment in favor of the State defendants. In August 2020, the district court entered an order, denying the plaintiffs’ requested declaratory judgment and granting the defendants’ request for dismissal of the action. The court specifically stated that “[a]ll of the challenged executive orders have since been superseded and are no longer in effect.” In its order, the court addressed the merits of the Appellants’ claims, but alternatively concluded the claims were moot and not justiciable. In September 2020, the district court entered a judgment of dismissal.
II
[¶6] The Appellants sought a declaratory judgment declaring the relevant executive orders were prohibited by law.
III
[¶8] The Appellants specifically identified the issues on appeal as the executive orders at issue are beyond the Governor‘s statutory powers; the executive orders involve fundamental rights requiring the application of the strict scrutiny standard of review; and declaratory judgment should have been issued as a matter of law and enforced by an appropriate writ.
[¶9] We need not address the multitude of issues raised by the Appеllants, because the district court‘s holding on mootness is dispositive. We have explained:
It is well established that courts will not give advisory opinions on abstract legal questions, and an action will be dismissed if there is no actual controversy left to be determined and the issues have become moot or academic. An action may become moot by the occurrenсe of events that result in a court‘s inability to render effective relief. The fact that a trial court has decided a moot case does not require us to do the same.
Poochigian v. City of Grand Forks, 2018 ND 144, ¶ 10, 912 N.W.2d 344 (relying on Gosbee v. Bendish, 512 N.W.2d 450, 452-53 (N.D. 1994)) (cleaned up).
[¶10] Here, the district court denied the Appellants’ request for a declaratory judgment and granted the State‘s request for dismissal of the action. The court held that the Governor has broad constitutional and statutory authority to manage an emergency or disaster from beginning to end and the disputed executive orders did not exceed the Governor‘s constitutional or statutory authority in this casе. The court concluded that the Governor and the State Health Officer were vested with the statutory authority to issue Executive Orders 2020-06.2, 2020-06.3, and 2020-06.4.
[¶11] As an alternate ground, however, the district court also concluded that the Appellants’ claims regarding the executive orders are moot and non-justiciable because the executive orders have been superseded, Somerset and Riggin are authorized to open and operate the Somerset Salon, and Riggin is authorized to provide cosmetology services. The court acknowledged that while the Gоvernor could reissue the orders at any time, there was no allegation or basis to conclude the orders would evade review if similar executive orders were issued in the future.
[¶12] The pаrties on appeal do not dispute that the challenged executive orders have been superseded. On appeal, the Appellants have not identified an issue speсifically challenging the district court‘s alternate conclusion that their claims regarding the executive orders are moot. In their brief at paragraph 25, the Appellants without any citation only generally allude to their claims regarding the superseded executive orders as not moot, but instead capable of evading review, stating:
Despite this expiration of the rеstrictions placed on Somerset and Kari Riggin, Somerset and Kari Riggin remain subject to the restrictions in the newest executive order, the specific restrictions of the ND Smart Restart protоcols, as well as any subsequent executive orders that may be issued by the Governor, thus making this action not moot but instead capable of evading review because the Governor could reissue at any time another executive order that contains the same restrictions as the previous executive order.
[¶13] We have explained that “[a] party waives an issue by nоt providing supporting argument and, without supportive reasoning or citations to relevant authorities, an argument is without merit.” In re J.J.T., 2018 ND 165, ¶ 29, 915 N.W.2d 106 (quoting Riemers v. City of Grand Forks, 2006 ND 224, ¶ 9, 723 N.W.2d 518). “A party abandons an argument by failing to raise it in the party‘s appеllate brief.” O‘Keeffe v. O‘Keeffe, 2020 ND 201, ¶ 14, 948 N.W.2d 848; see also Bearce v. Yellowstone Energy Dev., LLC, 2019 ND 89, ¶ 29, 924 N.W.2d 791; Gowan v. Ward Cty. Comm’n, 2009 ND 72, ¶ 11, 764 N.W.2d 425. We have declined to conduct a de novo review of issues when a party relies on bare assertions and fails to provide any supportive reasoning or citations to legal authority. See Riemers, at ¶¶ 9-10 (declining to conduct a de novo review of an alleged due process violation).
[¶14] While the Appellants have challenged the district court‘s conclusion that the executive orders did not exceed the Governor‘s constitutional or statutory authority, they have not adequately challenged the court‘s alternate conclusion thаt their claims are moot. Because they have not sufficiently developed any argument regarding mootness supported with legal authority, we conclude they have abandoned their opposition to the court‘s determination of mootness. See, e.g., J.J.T., 2018 ND 165, ¶ 29. We therefore deem it unnecessary for this Court to consider the Appellants’ issues concerning the Governor‘s constitutional and statutory authority to issue the superseded executive orders. We affirm the district court‘s judgment dismissing Appellants’ claims as moot.
IV
[¶15] We have considered the remaining issues, including thе Appellants’ motion for an expedited ruling in this matter, and conclude they are either without merit or unnecessary to our decision. The judgment is affirmed.
[¶16] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
M. Jason McCarthy, D.J.
[¶17] The Honorable M. Jason McCarthy, D.J., sitting in place of Tufte, J., disqualified.