Free Minnesota Small Business Coalition, et al., Appellants,

This opinion is nonprecedential except as provided by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

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1161

Free Minnesota Small Business Coalition, et al.,
Appellants,

vs.

Tim Walz,
Respondent.

Filed April 26, 2021
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NONPRECEDENTIAL OPINION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

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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 power s 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 significant

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restrictions 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 issu ed related executive orders
under the Minnesota Emergency Management Act of 1996 (MEMA), Minn. Stat. §§ 12.01-

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.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.” Min n. Stat.
§ 12.31, subd. 2(a).
“When the governor de clares 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 t he 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.

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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. 20 14). 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 the

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pleading, 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 a rticle 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 be longing 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 not

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merely 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 branches is what secures the separation of those powers.” Id.
Under the nondelegation doctrine, the legislature “cannot delegate purely legislative
power to any other body, person, board, or commission.” Lee v. Delmont, 36 N.W.2d 530,
538 (Minn. 1949). Purely legislative power is “the authority to make a complete law —
complete as to the time it shall take effect and as to whom it shall apply—and to determine
the expediency of its enactment.” Id. A law does not delegate purely legislative power if
it “furnishes a reasonably clear policy or standard of action which controls and g uides the
administrative officers in ascertaining the operative facts to which the law applies.” Id. at
538-39. The non delegation doctrine applies to t he Minnesota L egislature through the
separation-of-powers provision of our state constitution. Minn. Const. art. III, § 1; see also
Rukavina v. Pawlenty , 684 N.W.2d 525, 535 (Minn. App. 2004) ( citing article III of the
constitution when discuss ing the delegation of legislative power ), review denied (Minn.
Oct. 19, 2004).
Appellants’ briefs to this court focus solely on the governor’s creation of criminal
penalties in his executive orders as the basis for their separation-of-powers claim, arguing
that “[m]aking acts criminal or creating criminal laws is a purely legislative action.” They
point to Emergency Executive Order 20-63, in which the governor ordered that any willful
violation of the executive order is a misdemeanor and that a business owner’s requirement

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or encouragement of an employee to violate the executive order i s a gross misdemeanor.
They argue that “nothing under § 12.21, subdivision 3 grants the Governor the authority to
make actions criminal or to create criminal laws as he has done so in his Executive Orders.”
The governor responds that appellants’ argument regarding the imposition of criminal
penalties is not properly before this court because it was not raised or addressed in district
court.1
“A reviewing court must generally consider only those issues that the record shows
were presented and considered by the [district] court in d eciding the matter before it.”
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted ). Furthermore, an
appellant may not “obtain review by raising the same general issue litigated below but
under a different theory.” Id.
[T]he theory of the judicial system in this state is that the
parties shall have first a decision of the court below, and then
a review of that decision in this court. The very nature of its
jurisdiction confines this court to a consideration of such
questions as, origi nating in another court, have been there
actually or presumably considered and determined in the first
instance. The rule applies whether the question is one of fact
or of law.
In re Judicial Ditch No. 1 , 167 N.W. 124, 125 ( Minn. 1918) (citation omitted). “The
modern caselaw makes it abundantly clear that, as a general rule, if an appellant fails to

1 The governor also argues that the legislature , and not the governor, established the
challenged criminal penalties, noting that MEMA provides: “Unless a different penalty or
punishment is specifically prescribed, a person who willfully violates a provision of this
chapter or a rule or order having the force and effect of law issued under authority of this
chapter is guilty of a misdemeanor and upon conviction must be punished by a fine not to
exceed $1,000, or by imprisonment for not more than 90 days.” Minn. Stat. § 12.45.

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preserve an argument or issue in district court proceedings, the issue or argument is
forfeited and may not be asserted in an appellate court.” Doe 175 ex re l. Doe 175 v.
Columbia Heights Sch. Dist., ISD No. 13, 842 N.W.2d 38, 43 (Minn. App. 2014).
In district court, a ppellants did not argue that the governor’s creation of criminal
penalties in Emergency Executive Order 20-63 violates the separation-of-powers doctrine.
Instead, appellants argued that the governor’s restrictions on businesses and individuals
themselves were unauthorized exercises of legislative power. Appellants also argued that
MEMA is unconstitutional because it provides no legal standard or legislative guidance for
the governor’s issuance of executive orders during a peacetime emergency. To be clear,
although appellants referenced Emergency Executive Order 20 -63 in their petition for a
writ of quo warranto in district c ourt, they did not challenge the governor’s creation of
criminal penalties or argue that the governor had violated the separation-of-powers doctrine
by authorizing those penalties.
The district court rejected the arguments that appellants did make, concl uding that
MEMA provides a reasonably clear standard by which the governor may declare a
peacetime emergency. Appellants do not address that ruling on appeal.2 Instead, they raise

2 At oral argument before this court, appellants indicated that they were raising two claims
for this court’s consideration. Appellants described the first as a “ nondelegation doctrine
claim.” Specifically, appellants stated that MEMA is a “constitutionally unauthorized
delegation of legislative emergency powers” and that “in this legal claim the
constitutionality is a matter of the specificity required for a constitutional delegation.”
Although appellants mentioned a “specificity” challenge at the beginning of their oral
argument to this court, they did not argue it further. Moreover, appellants did not address
that challenge in their briefs to this court. We therefore do not consider it. See Melina v.
Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating that an issue not argued in the briefs is
waived).

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the same general issue —whether the governor violated the separation -of-powers
doctrine—under a new theory based on the governor’s creation of criminal penalties for
violation of his emergency executive orders.
On “rare occasions” appellate courts have allowed a party in a civil case to raise an
issue for the first time on app eal. Roth v. Weir , 690 N.W.2d 410, 413 -14 (Minn. App.
2005) (quotation omitted) (discussing factors favoring appellate review and exercising
discretion to address issues raised for first time on appeal). But a ppellants have not
articulated a basis for this court to depart from its general rule that “if an appellant fails to
preserve an argument or issue in district court proceedings, the issue or argument is
forfeited and may not be asserted in an appellate court.” Doe 175, 842 N.W.2d at 43.
We acknowledge appellants’ frustration with the governor’s executive orders and
the economic harm those orders have caused. But this court must follow the law. Indeed,
it would be troubling for this court to ignore rules limiting the issues that it may cons ider
on appeal in an effort to reach an unpreserved claim that another co -equal branch of
government exceeded its authority. In sum, appellants’ separation-of-powers challenge to
the governor’s creation of criminal penalties for violation of his executive orders is not
properly before this court. We therefore do not determine the merits of that issue.
II.
Appellants contend that Minn. Stat. § 12.31, subd. 2(b), creates an unconstitutional
legislative veto. That provision permits the legislature to terminate a peacetime emergency
extending beyond 30 days “[b]y majority vote of each house of the legislature.” Minn.
Stat. § 12.31, subd. 2(b). According to appellants, the statute violates the Presentation

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Clause of the Minnesota Constitution, which requires bills passed by the legislature to be
presented to the governor. See Minn. Const. art. IV, § 23. Additionally, appellants contend
that MEMA is not severable and that all of Minn. Stat. § 12.31, subd. 2 , is therefore
unconstitutional, including the provision authorizing the governor to declare a peacetime
emergency. The governor argues that appellants’ constitutional chall enge to Minn. Stat.
§ 12.31, subd. 2(b), is not justiciable because the legislature has not terminated the
peacetime emergency under that section and that appellants therefore lack standing to
assert that claim.
Before a Minnesota court can determine th e constitutionality of a statute, a
justiciable controversy must exist. Kennedy v. Carlson , 544 N.W.2d 1, 6 (Minn. 1996).
To establish the existence of a justiciable controversy, litigants must show “a direct and
imminent injury which results from the alleged unconstitutional provision.” Id. (quotation
omitted). Questions of justiciability are issues of law that we review de novo. McCaughtry
v. City of Red Wing, 808 N.W.2d 331, 337 (Minn. 2011).
The concept of standing is a component of justiciability that involves who may bring
a particular claim . Id. at 338. “Standing is the requirement that a party has a sufficient
stake in a justiciable controversy to seek relief from a court.” State by Humphrey v. Philip
Morris Inc., 551 N.W.2d 490, 493 (Minn. 1996). Parties acquire standing when they suffer
an “injury-in-fact” or when the legislature confers standing by statute. Id. The purpose of
the standing requirement is “to ensure that issues before the courts will be vigorously and
adequately presented.” Id. (quotation omitted).

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It is undisputed that the Minnesota L egislature has not voted to terminate the
peacetime emergency under Minn. Stat. § 12.31, subd. 2(b) . Thus, appellants have not
suffered an injury-in-fact stemming from application of Minn. Stat. § 12.31, subd. 2(b) .
Indeed, the injuries that appellants describe result from the governor’s peacetime-
emergency executive orders, and not from a legislative vote to terminate the peacetime
emergency under Minn. Stat. § 12.31, subd. 2(b). Because appellants have not suffered an
injury-in-fact stemming from application of Minn . Stat. § 12.31, subd. 2(b) , they lack
standing to challenge that provision, and their constitutional challenge to that statute is not
justiciable. We therefore do not determine the merits of that issue.
III.
Finally, appellants contend that the district court erred by determining that the state-
legislator appellants do not have standing to pursue the underlying petition for a writ of
quo warranto. Specifically, appellants c ontend that those legislators ha ve standing as
individual taxpayers.
Again, standing requires a party to have a sufficient stake in a justiciable
controversy. Id. When the facts are undisputed, the question of standing is a question of
law that we review de novo. Olson v. State, 742 N.W.2d 681, 684 (Minn. App. 2007).
Although appellants separately argue that the district court erred in determining that
the state -legislator appellants lack standing in this matter, and although standing is
generally addressed as a threshold issue, we need not address the standing issue here
because the claims that the state -legislator appellants seek to advance on appeal are not
properly before this court. Simply put, the merits of appellants’ constitutional claims are

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not properly before this court , and we therefore decline to consider them . Thus , a
determination whether the state-legislator appellants have standing to pursue those claims
would not affect the relief available to those appellants in this appeal. We therefore do not
determine the merits of that issue. See State ex rel. Leino v. Roy , 910 N.W.2d 477, 481
(Minn. App. 2018) (stating that this court does not issue advisory opinions or decide cases
merely to establish precedent), review granted (Minn. June 27, 2018) and appeal dismissed
(Minn. May 10, 2019).
Affirmed.