State of Minnesota, by Jan Malcolm, Commissioner of Health, in her Official capacity, Respondent,

This opinion is nonprecedential except as provided by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
A20-1612

State of Minnesota, by Jan Malcolm,
Commissioner of Health, in her Official capacity,
Respondent,

vs.

Southwest School of Dance, LLC,
d/b/a Havens Garden,
Appellant.

Filed July 6, 2021
Affirmed; motion denied
Hooten, Judge

Ramsey County District Court
File No. 62-CV-20-5691

Keith Ellison, Attorney General, Kaitrin C. Vohs, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Nathan M. Hansen, North St. Paul, Minnesota (for appellant)

Veronica S. Newcomer, Leonard Fineday, White Earth, Minnesota (for White Earth Band
of Ojibwe)

Considered and decide d by Connolly, Presiding Judge; Hooten, Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
HOOTEN, Judge
In this appeal from a civil contempt judgment and the underlying temporary
injunction requiring compliance with the governor’s COVID-19 executive order restricting

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restaurant service, appellant-restaurant argue s that enforcement of the executive order
violates appellant’s constitutional right to equa l protection in that restaurants located on
Indian reservations in the state were exempted from the order. Because we conclude that
the executive order does not violate appellant’s constitutional right to equal protection, we
affirm. Respondent-state al so brought a motion to dismiss the appeal for mootness.
Because we conclude that the issues raised by the appeal are not moot, the state’s motion
to dismiss is denied.
FACTS
On March 13, 2020, Minnes ota Governor Tim Walz issued Emergency Executive
Order No. 20-1 declaring a peacetime emergency due to the spread of the infectious disease
COVID-19 and the resulting pandemic. Emerg. Exec. Order No. 20-01, Declaring a
Peacetime Emergency & Coordinating Minnesota’s Strategy to Protect Minnesotans from
COVID-19 (Mar. 13, 2020) (EEO 20-1). In EE O 20-1, Governor Walz ordered the
Minnesota Department of Health to lead th e coordination of Minnesota’s response to
COVID-19 in consultation with tribal nati ons, among others. Throughout the remainder
of 2020, Governor Walz issued orders renewing and extend ing this state of emergency
roughly every 30 days. Emergency Executive Orders Nos. 20-35 (Apr. 13, 2020), 20-53
(May 13, 2020), 20-75 (June 12, 2020), 20-78 (July 13, 2 020), 20-83 (Aug. 12, 2020),
20-89 (Sept. 11, 2020), 20-92 (Oct. 12, 20 20), 20-97 (Nov. 12, 20 20), 20-100 (Dec. 14,
2020).
On November 18, 2020, Governor Walz issued Emergency Executive Order No.
20-99 prohibiting restaurants, bars, tobacco establishments, and other places of public

3
accommodation offering food, be verage, or tobacco prod ucts from operating for on-
premises consumption from November 20, 2 020, through December 18, 2020. Emerg.
Exec. Order No. 20-99, Implementing a Four Week Dial Back on Certain Activities to Slow
the Spread of COVID-19 (Nov. 18, 2020) (EEO 20-99). However, EEO 20-99 contained
the following exemption for tribal activities and lands: “Activities by tribal members within
the boundaries of their tribal reservations are exempt from the restrictions in this Executive
Order but may be subject to restrictions by tribal authorities.” Governor Walz encouraged
“state and local licensing and regulatory en tities that inspect bus inesses for compliance
with rules and codes to protect the public” by assessing regulated businesses’ compliance
with the executive order and using any existing enforcement tools to bring businesses into
compliance with its terms. EEO 20-99.
Appellant Southwest School of Dance, LLC, d/b/a Havens Garden, has a license
from Southwest Health and Human Services (SWHHS) to operate Havens Garden as a
food and beverage service establishment in Minnesota. On November 23, 2020, SWHHS
contacted appellant about Havens Garden’s Facebook advertisement for an event featuring
live music, food, and an open microphone on November 27, 2020. Appellant informed
SWHHS that it intended to proceed with the ev ent and provide indoor dining. Two days
later, SWHHS sent a letter to appellant stat ing that “[i]ndoor dining and the planned
gathering scheduled for November 27 from 9pm-11pm would be considered a violation of
[E]EO 20-99, requiring SWHHS inspection staff to proceed with enforcement action.”
On November 27, 2020, SWHHS conducted an onsite inspection of Havens Garden
and observed approximately 80 to 100 people consuming food and beverages inside the

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restaurant. After determining that Havens Garden violated EEO 20-99 by remaining open
to the public for on-premises consumption of food and drink, SWHHS issued an order on
December 9, 2020, requiring appellant to ceas e and desist operation of Havens Garden.
After being served with the cease and desist order, Havens Garden posted a video to its
public Facebook page announcing its inte ntion to remain op en for on-premises
consumption of food and beverages on December 9, 10, and 11, 2020.
On December 11, 2020, the state by its commissioner of health filed a civil
complaint, along with a motion for a temporary restraining order (TRO) and a temporary
injunction against appellant. In its motion, the state asked the district court to (1) enjoin
appellant from providing on-site consumption services at Have ns Garden in violation of
EEO 20-99, and (2) order appellant to comp ly with EEO 20-99 an d any future executive
orders applying to restaurants, bars, or food and beverage establishments. The next day,
the district court granted the state’s motion fo r a TRO and ordered appe llant to certify in
writing that it was no longer providing on-premises consumption services within one hour
after being served a copy of the TRO. The state served appellant with a copy of the TRO
on December 14, 2020, at 10:50 a.m. There is no evidence in the re cord that appellant
certified in writing that it was no longer provi ding on-premises consumption services
within one hour of being served the TRO.
Appellant filed a responsive memoran dum opposing the state’s motion for a
temporary injunction, arguing th at EEO 20-99 violated its constitutional right to equal
protection by discriminating in favor of tribal restaurants. After a hearing on December
16, 2020, the district court issued a tempor ary injunction enjoining appellant from taking

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any action violating EEO 20-99 including, but not limited to, providing onsite consumption
services at Havens Garden. The district court ordered appellant to comply with EEO 20-
99 and any future executive orders applying to restaurants, bars, or food and beverage
establishments. The district court also ordered appellant to certify its compliance with the
temporary injunction within one hour after being served with a copy of the order for the
temporary injunction. The state served appellant with a copy of the order for the temporary
injunction on December 17, 2020, at 2:58 p.m. There is no evidence in the record that
appellant certified its complianc e with the order for the tem porary injunction within one
hour of being served.
Because appellant refused to comply w ith the TRO and order for the temporary
injunction, the state moved the district court to order appellant to show cause for why it
should not be held in contempt of court. At the December 18, 2020, hearing on the state’s
motion to show cause, appellant informed the district court that it would not comply with
the district court’s orders or Governor Wa lz’s executive orders, arguing that they were
“unlawful and unconstitutional.” The district court found appellant to be in constructive
civil contempt for its failure to comply with the district court’s December 12 and 16 orders,
and ordered appellant to pay a $250 fine fo r each day Havens Gard en remained open in
violation of the district court’s order, beginn ing on December 19, 2020. In the contempt
order, the district court states that its fi nding of civil contempt shall be vacated and
dismissed “[u]pon [appellant’s] filing of an affidavit of compliance demonstrating
compliance” with the district court’s order. There is not hing in the record indicating that
appellant has certified or demonstrated compliance with the district court’s December 12,

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16, and 18 orders. Appellant now appeals the district court’s civil contempt judgment and
the underlying temporary injunction.1

1 In its brief, the state argues that the contem pt judgment is not a ppealable because the
contempt finding could be purged upon appella nt’s certification of compliance with the
district court’s order. A contem pt order is not appealable if it “direct[s] punishment only
if [a party] fails to purge himself of his contempt.” See Becker v. Becker, 217 N.W.2d 849,
850 (Minn. 1974). The contempt judgment in this case imposed daily fines for
noncompliance, and it is not clear whether a ccumulated fines were subject to the purge
conditions in the judgment. Thus, we re ject the argument that the judgment was
conditional and not appealable. See Time-Share Sys., Inc. v. Schmidt , 397 N.W.2d 438,
440 (Minn. App. 1986) (holding appealable contempt order that “found contempt and
imposed fines, costs and attorney fees”).
After this appeal was argued and submitted for decision, the state filed a motion to
dismiss the appeal as moot. Th e state explains that EEO 20-9 9 is no longer in effect and
that Minnesota bars and restaurants are no longer subject to “occupancy limits, distancing,
or other sector-specific limits.” Thus, the state asserts, appellant’s challenge to the
constitutionality of EEO 20-99 is moot. The “g eneral rule is that when, pending appeal,
an event occurs that makes a decision on the merits unnecessary or an award of effective
relief impossible, the appeal sh ould be dismissed as moot.” In re Application of
Minnegasco, 565 N.W.2d 706, 710 (Minn. 1997). But “an appeal is not moot when a party
could be afforded effective relief.” Wayzata Nissan, LLC v. Nissan N. Am., Inc. , 875
N.W.2d 279, 283 (Minn. 2016 ). Although the requirements of the district court’s
injunction might be vitiated by subsequent events, appellant also seeks review of the
contempt judgment stemming from violations of the injunction. And we could grant
effective relief to appellant by reversing the contempt judgment. Moreover, an appeal will
not be dismissed as moot “w here collateral consequences attach to the judgment.” In re
McCaskill, 603 N.W.2d 326, 327 (Minn. 1999). The parties represent that proceedings to
revoke appellant’s food an d beverage license are pend ing before the Office of
Administrative Hearings and that the constitutionality of EEO 20-99 has been challenged
in those proceedings. Because those license proceedings tu rn at least in part on the
constitutionality of EEO 20- 99, the district court’s rulings could have collateral effects.
For these reasons, we are not persuaded that th is appeal is moot, a nd we deny the state’s
motion to dismiss.

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DECISION
The United States Supreme Court has recognized tribal sovereignty for more than a
century and a half, explaining that under fe deral law, “Indian tribes are ‘domestic
dependent nations’ that exercise inherent sovereign authority over their members and
territories.” Okla. Tax Comm’n v. Citizen Band of Potawatomi Indian Tribe of Oklahoma,
498 U.S. 505, 509, 111 S. Ct. 90 5 (1991) (citing Cherokee Nation v. Georgia, 30 U.S. 1,
13 (1831)). As Chief Justice John Marshall desc ribed nearly two centuries ago, Indian
tribes are “distinct, independ ent political communities, retain ing their original natural
rights, as the undisputed possessors of the soil, from time immemorial . . . .” Worcester v.
Georgia, 31 U.S. 515, 519 (1832). Tribes not only enjoy the authority to exercise control
within the boundaries of their lands, but they also possess the inherent “power of regulating
their internal and social relations.” United States v. Mazurie, 419 U.S. 544, 557, 95 S. Ct.
710 (1975) (quotation omitted). This “unique legal status of Indian tribes . . . permits the
Federal Government to enact legislation sing ling out tribal Indian s,” even where that
legislation “might otherwise be constitutionally offensive.” Washington v. Confederated
Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 500–501, 99 S. Ct. 740, 761
(1979).
Nonetheless, appellant argues that EEO 20-99 violates the Equal Protection Clauses
of both the Minnesota and the United States Constitutions by discri minating in favor of
tribal restaurants, and that the district c ourt therefore erred by enforcing it by issuing a
temporary injunction against appellant and finding appellant in constructive civil contempt.
“Issues of constitutional interpretation are ques tions of law which we review de novo.”

8
Star Tribune Co. v. Univ. of Minn. Bd. of Regents , 683 N.W.2d 274, 283 (Minn. 2004).
Like statutes, the governor’s emergency executive orders have “the full force and effect of
law.” Minn. Stat. § 12.32 ( 2020). Accordingly, we presum e executive orders to be
constitutional and recognize that our power to declare an executive order unconstitutional
should be exercised with extreme caution and only when absolutely necessary. Cf. In re
Haggerty, 448 N.W.2d 363, 364 (Minn. 1989) (“Minnesota statut es are presumed to be
constitutional, and the power to declare a st atute unconstitutional is “exercised with
extreme caution and only wh en absolutely necessary.” ). Additionally, the party
challenging the constitutionality of an execu tive order bears the burden of establishing
beyond a reasonable doubt that the statute violates a constitutional provision. Cf. id. (“The
party challenging a statute ha s the burden of dem onstrating beyond a reasonable doubt a
violation of some provision of the Minnesota Constitution.”).
Appellant argues that: (1) we must appl y the similarly-situated test, which is
satisfied because appellant is similarly situated to restaurants located on tribal reservations;
(2) rational-basis scrutiny app lies; and (3) enforcement of EEO 20-99 fails rational-basis
review. We address each argument in turn.
A. We need not apply the threshold similarly-situated test.

The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution prohibits a state from denying “to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. am end. XIV, § 1. The Minnesota Constitution
provides that “[n]o member of this state shal l be disfranchised or de prived of any of the

9
rights or privileges secured to any citizen thereof, unless by the law of the land or the
judgment of his peers.” Minn. Const. art. I, § 2.
“The equal protection clauses of both the United States and Minnesota constitutions
mandate that all similarly situated i ndividuals shall be treated alike.” State v. Richmond,
730 N.W.2d 62, 71 (Minn. App. 2007) (quotation omitted), review denied (Minn. June 19,
2007). Under both clauses, “only invidiou s discrimination is deemed constitutionally
offensive.” Scott v. Minneapolis Police Relief Ass’n , 615 N.W.2d 66, 74 (Minn. 2000)
(quotation omitted). Equal prot ection “does not forbid [all st atutory] classifications.” In
re Welfare of M.L.M. , 813 N.W.2d 26, 37 (Minn. 2012). Rather, “[i]t simply keeps
governmental decisionmakers from treating diffe rently persons who are in all relevant
aspects alike.” Id. (quotation omitted).
Equal protection analysis involves a three-tiered approach depending on the nature
of the individual right at issue. Back v. State , 902 N.W.2d 23, 28 (Minn. 2017).
Classifications based on race, alienage, or national origin, and laws affecting fundamental
rights protected by the Constitution, are subject to strict scrutiny. In re Welfare of M.L.M.,
781 N.W.2d 381, 388 (Minn. App. 2010), aff’d, 813 N.W.2d 26 (Minn. 2012). Laws
implicating these fundamental rights or suspect classifications “will be upheld only if [they
are] necessary to serve a compelling state interest.” Id. An intermediate level of scrutiny,
which requires some laws to be substantially related to an important government objective,
is used to assess quasi-suspect classifi cations such as thos e based on gender. N.H. v.
Anoka-Hennepin Sch. Dist. No. 11, 950 N.W.2d 553, 569 (Minn. App. 2020). Legislation
that does not affect a fundamental right or employ a suspect or quasi-suspect classification

10
is examined using the rational-basis test. Id. Such legislation is uphe ld so long as it is
“rationally related to a le gitimate state interest.” Back, 902 N.W.2d at 29 (quotation
omitted).
“[I]n order to establish th at [an appellant] has been de nied equal protection of the
laws, [the appellant] must show that sim ilarly situated persons have been treated
differently.” State v. Cox, 798 N.W.2d 517, 521 (Minn. 2 011) (quotation omitted). This
is a “threshold question in an equal protection claim,” regardless of the level of scrutiny to
be applied. State v. Holloway, 916 N.W.2d 338, 347 (Minn. 2018). However, we need not
apply the similarly-situated test when “we can decide the case without great difficulty by
applying the proper degree of scrutiny to the classifications created by the Legislature.” In
re Guardianship, Conservatorship of Durand, 859 N.W.2d 780, 784 (Minn. 2015).
The United States Supreme Court has consiste ntly rejected claims that laws treating
tribal members as a distinct class violate equal protection. See Washington, 439 U.S. at
499–502, 99 S. Ct. at 760–762 (1979); Delaware Tribal Bus. Comm. v. Weeks , 430 U.S.
73, 84–90, 97 S. Ct. 911, (1977); Fisher v. District Court, 424 U.S. 382, 390–91, 96 S. Ct.
943 (1976); Morton v. Mancari , 417 U.S. 535, 551–55, 94 S. Ct. 2474 (1974). This
extensive precedent allows us to decide this case without great difficulty by determining
and applying the same degree of scrutiny applied in those cases, and we therefore need not
determine whether Havens Garden is similarly situated to restaurants located on tribal
reservations.

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B. Rational-basis scrutiny applies.
Recognizing the unique legal status of tribes, the United States Supreme Court has
repeatedly upheld legislation that singles out Indians for partic ular and special treatment.
See, e.g., Morton v. Ruiz, 415 U.S. 199, 94 S. Ct. 1055 (1974) (providing welfare benefits
to Indians, but only those who live “on or near” reservations); Bd. of Cty. Comm’rs v. Seber,
318 U.S. 705, 63 S. Ct. 9 20 (upholding exclusive tax immunity for certain Indians);
McClanahan v. Ariz. State Tax Comm’n , 411 U.S. 164, 93 S. Ct . 1257 (1973) (same);
Simmons v. Eagle Seelatsee, 384 U.S. 209, 86 S. Ct. 1459 (1966), aff’g 244 F. Supp. 808
(E.D. Wash. 1965) (limiting right to inhe rit reservation land only to Indians); Williams v.
Lee, 358 U.S. 217, 79 S. Ct. 269 (1959) (holding that state courts lacked jurisdiction over
dispute between non-Indian, on-reservation retailer and Indian debtors).
In Mancari, the Supreme Court rejected an equal-protection challenge to a statutory
hiring preference for Indians in the Bureau of Indian Affairs (BIA) after applying rational
basis review. 417 U.S. at 555, 94 S. Ct. at 2485. Relying upon the “unique legal status”
of tribal members, the Court held that st atutory preferences fa voring Indians over non-
Indians were not unconstitutional classifications and that laws affo rding Indians special
treatment are constitutional, “[a]s long as the special treatment can be tied rationally to the
fulfillment of Congress’ unique obligation toward the Indians . . . .” Id. at 555, 94 S. Ct.
at 2485. The Court also explained that statut ory preferences for [] Indians are not racial
but political when the preferences apply to members of federally recognized tribes. Id. at
553 n.24, 94 S. Ct. at 2484 n.24 . Although the Supreme Court in Mancari considered a
challenge to a classification contained in a federal law and relied on the unique obligation

12
of Congress to federally-recognized Indian tribes under the trust doctrine, 2 “[s]tate action
for the benefit of Indians can also fall under the trust doctrine and therefore be protected
from challenge under the equal protection clause or civil rights statutes.” Greene v.
Comm’r of Human Servs. , 733 N.W.2d 490, 497 (Minn. App. 2008), aff’d, 755 N.W.2d
713 (Minn. 2008). Thus, classifications base d on tribal membership in state laws that
promote the Congressional policy of tribal se lf-governance, benefit tribal members, or
implement or reflect federal laws ar e subject to rational-basis review. See Greene v.
Comm’r of Human Servs., 755 N.W.2d 713, 727 (Minn. 2008)
C. EEO 20-99 satisfies rational basis review.
Because EEO 20-99 exempts activities by tribal member s on reservations, and
therefore classifies restaurants based on tribal membership, we must uphold the emergency
executive order under the United States Constitution “[a]s long as the special treatment can
be tied rationally to the fulf illment of Congress’ unique oblig ation toward the Indians.”
Mancari, 417 at 554–55, 94 S. Ct. at 2484–85. Legislation involving preferences that
directly promote Indian interests in self- governance passes rational basis review because
“such regulation is rooted in the unique status of Indians as a separate people with their

2 The trust doctrine is a source of federal responsibility to Indians requiring the federal
government to support tribal self-government and economic prosperity, duties that stem
from the government’s treaty guarantees to protect Indian tribes and respect their
sovereignty. Mancari, 417 U.S. at 541–542, n.10; 94 S. Ct. at 2478, n.10. (“‘We can and
should, without further delay, extend to the Indian the fundamental rights of political liberty
and local self-government and the opportunities of education and economic assistance that
they require in order to attain a wholesome American life. This is but the obligation of
honor of a powerful nation toward a peopl e living among us and dependent upon our
protection.’” (quoting H.R. Rep. No. 1804, 73d Cong., 2d Sess., 8 (1934)).

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own political institutions,” United States v. Antelope , 430 U.S. 641, 646, 97 S. Ct. 1395,
1399 (1977) (quotation omitted), and is therefore rationally tied to the fulfilment of the
trust doctrine.
EEO 20-99’s exemption of restau rants on tribal reservations furthers the ability of
tribal authorities to self-govern their members on public hea lth issues related to COVID-
19. This exemption is rati onally related to the legitimat e governmental interest of
protecting and promoting tribal sovereignty, fostering Indi an interests in self-governance
on public health issues related to COVID-19, and fulfilling Minnesota’s unique obligation
toward Indians. EEO 20-99 therefore does no t violate the equal protection clause of the
United States Constitution.
Additionally, subject to one exception that is inapplicable here, “the principle we
apply in analyzing laws subject to rational basis review under the Minnesota Constitution
is the same principle applied to such laws under the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution.” Fletcher Properties, Inc. v.
City of Minneapolis, 947 N.W.2d 1, 19 (Minn. 2020). Thus, under rational basis review of
EEO No. 20-99, our state constitution mandates no different result than the United States
Constitution.
Applying rational basis review, we conclude that the distinction between restaurants
on tribal and non-tribal land in EEO 20-99 does not violate the United States and Minnesota
Constitutions’ guarantees of equal protection. Therefore, the district court did not err by

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issuing a temporary injunction against appellant and finding appellant in constructive civil
contempt.3
Affirmed; motion denied.

3 We need not determine whether 25 U.S.C. § 231 or Minn. Stat. § 12.32 authorize
Governor Walz to exercise ju risdiction over bars and restau rants on tribal lands during a
state emergency because appellant failed to raise these arguments to the district court and
therefore forfeited them on appeal. State v. Balandin, 944 N.W.2d 204, 220 (Minn. 2020).
(“We consider issues that are not raised in the district court but are raised for the first time
on appeal to be forfeited.”).